PEOPLE v. SHATTUCK (2007)

Defendant contends in his main brief and his pro se supplemental brief that County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   We reject that contention.   The court's upward departure from the presumptive risk level is supported by clear and convincing evidence (see § 168-n [3];  People v. Auld, 24 A.D.3d 1249, 806 N.Y.S.2d 832, lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1173;  People v. Heichel, 20 A.D.3d 934, 935, 798 N.Y.S.2d 633).  “If the risk of a repeat offense is high and there is a threat to the public safety, a level three designation is appropriate” (Heichel, 20 A.D.3d at 935, 798 N.Y.S.2d 633).   Here, an upward departure was warranted based upon defendant's prior sex offenses and history of substance abuse, which together indicated that defendant had a high risk to reoffend that was not adequately taken into account in the risk assessment instrument (see 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: