PEOPLE v. THORNTON (2006)

Appeal from an order of the County Court of Rensselaer County (McGrath, J.), entered June 22, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

The sole issue presented on this appeal is whether County Court's upward departure from defendant's presumptive risk level I sex offender status to a risk level III status was proper.¹  We find that it was and affirm.

 A court may order an upward departure when an aggravating or mitigating factor exists which was not otherwise adequately taken into consideration by the risk assessment guidelines (see People v. Cruz, 28 A.D.3d 819, 819, 811 N.Y.S.2d 816 [2006];  People v. Joslyn, 27 A.D.3d 1033, 1033-1034, 811 N.Y.S.2d 807 [2006] ).   The court's determination in that regard must be supported by clear and convincing evidence (see People v. Kwiatkowski, 24 A.D.3d 878, 879, 805 N.Y.S.2d 188 [2005];  People v. Miranda, 24 A.D.3d 909, 910, 806 N.Y.S.2d 729 [2005] ), which can be in the form of reliable hearsay (see Correction Law § 168-n [3];  People v. Ashley, 19 A.D.3d 882, 883, 797 N.Y.S.2d 623 [2005];  People v. Arotin, 19 A.D.3d 845, 847, 796 N.Y.S.2d 743 [2005] ).   Here, County Court premised its upward departure on information contained in the presentence investigation report, including statements made by defendant to the Probation Department concerning his prior sexual misconduct, unrelated to this case.   Inasmuch as such a report can constitute reliable hearsay (see People v. Brown, 25 A.D.3d 924, 924-925, 807 N.Y.S.2d 221 [2006];  People v. Dickison, 24 A.D.3d 980, 981, 805 N.Y.S.2d 198 [2005], lv. denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [2006] ), we conclude that, under these circumstances, County Court's determination was supported by the requisite clear and convincing evidence.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Defendant's underlying conviction was affirmed by this court (People v. Thornton, 263 A.D.2d 782, 693 N.Y.S.2d 772 [1999] ).

PETERS, J.

MERCURE, J.P., SPAIN, CARPINELLO and KANE, JJ., concur.