PEOPLE v. HOWE (2008)

 On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court's upward departure from his presumptive risk level as a level two risk is not supported by clear and convincing evidence.   We reject that contention (see People v. Gandy, 35 A.D.3d 1163, 825 N.Y.S.2d 889;  People v. Seils, 28 A.D.3d 1158, 813 N.Y.S.2d 594, lv. denied 7 N.Y.3d 709, 822 N.Y.S.2d 483, 855 N.E.2d 799).   “A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors ․[,] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines' ” (People v. Cruz, 28 A.D.3d 819, 819, 811 N.Y.S.2d 816;  see People v. Foley, 35 A.D.3d 1240, 826 N.Y.S.2d 868).   We agree with defendant that the court erred in considering his “chronic alcoholism” as a factor supporting the upward departure from the presumptive risk level because that factor was already taken into account by the risk assessment instrument (see People v. Abraham, 39 A.D.3d 1208, 1209, 834 N.Y.S.2d 413;  People v. Foley, 35 A.D.3d 1240, 826 N.Y.S.2d 868).   Nevertheless, we conclude that the court properly relied upon the case summary prepared by the Board of Examiners of Sex Offenders, which constitutes reliable hearsay (see People v. Roman, 41 A.D.3d 1288, 839 N.Y.S.2d 362, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514), together with the facts of the underlying conviction and defendant's prior history of child sexual abuse, in determining that an upward departure to a level three risk was warranted (see § 168--l [6][c];  § 168-n[3] ).

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

MEMORANDUM: