PEOPLE v. MILLAR (2007)

We previously held this case, reserved decision and remitted the matter to Supreme Court to comply with Correction Law § 168-n (3) by setting “forth the findings of fact and conclusions of law upon which its determination” of defendant's risk level pursuant to the Sex Offender Registration Act (§ 168 et seq.) was based (People v. Millar, 39 A.D.3d 1181, 832 N.Y.S.2d 856).   The Board of Examiners of Sex Offenders (Board) initially assessed defendant as a level one risk but recommended an upward departure to level two, based in part on its findings that defendant had continued to download child pornography after his arrest and had fabricated a story of childhood sexual abuse to explain his actions.   Upon remittal, we conclude that the court properly agreed with the Board that the upward departure to a level two risk was warranted, and we thus conclude that the court's determination of defendant's risk level is supported by clear and convincing evidence (see § 168-n [3];  People v. Delmarle, 2 A.D.3d 1446, 1447, 769 N.Y.S.2d 431, lv. denied 2 N.Y.3d 702, 778 N.Y.S.2d 461, 810 N.E.2d 914). The record establishes that the court relied upon the facts contained in the case summary, which were not in dispute, and those facts provided the requisite evidentiary support for the court's determination (see People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723, lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241).   Indeed, the case summary set forth that defendant continued to fantasize about children, and that fact “ justified the upward departure” (People v. Bottisti, 285 A.D.2d 841, 842, 727 N.Y.S.2d 787).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: