THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DENNIS TOOLEY DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   Contrary to defendant's contention, County Court properly determined that an upward departure from his presumptive risk level was warranted.   During the presentence investigation interview, defendant admitted that he had previously sexually abused two other individuals who were not victims with respect to the underlying conviction, and that aggravating factor was not adequately taken into account by the risk assessment guidelines.   Thus, the upward departure that resulted in defendant's classification as a level three risk is supported by the requisite clear and convincing evidence (see § 168–n [3];  People v. Farrell, 78 AD3d 1454, 1455;  People v. McCollum, 41 AD3d 1187, lv denied 9 NY3d 807;  see also People v. Cummings, 81 AD3d 1261).

Patricia L. Morgan

Clerk of the Court