PEOPLE v. GARRISON (2007)

Appeal from an order of the County Court of Broome County (Smith, J.), entered September 28, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to attempted sodomy in the first degree and was thereafter sentenced to a prison term of four years.   Prior to his release, the Board of Examiners of Sex Offenders evaluated and presumptively classified him as a risk level II sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C), but recommended an upward departure to risk level III status.   Following a hearing on the matter, County Court agreed that an upward modification was warranted and classified defendant as a risk level III sex offender.   Defendant now appeals.

Defendant asserts that the People did not produce clear and convincing evidence warranting an upward departure from the presumptive level.   We disagree.   It is now well settled that this standard of proof may be satisfied by facts set forth in a presentence report (see People v. Cruz, 28 A.D.3d 819, 819, 811 N.Y.S.2d 816 [2006] ). Defendant correctly asserts that the aggravating or mitigating factor relied upon must be one which was not otherwise adequately taken into account by the risk assessment guidelines (see id. at 819, 811 N.Y.S.2d 816;  People v. Joslyn, 27 A.D.3d 1033, 1033-1034, 811 N.Y.S.2d 807 [2006];  see also People v. Mount, 17 A.D.3d 714, 715, 792 N.Y.S.2d 697 [2005] ).   Here, the evidence clearly establishes that defendant, on multiple occasions, sexually abused three of his male relatives (ages 11 through 16) over a period of at least two years.

The risk assessment instrument, as amplified by the guidelines, permits the assessment of 20 points if the offender engaged in a continuing course of misconduct with at least one victim and the assessment of 20 points if the age of the victim is 11 through 16.   Although the third category on the risk assessment instrument permits the addition of 30 points if there are three or more victims,¹ neither category 4 nor category 5 includes additional points for the continuing sexual misconduct of multiple victims who are underage.   We, therefore, hold that County Court appropriately considered these factors as justifying an upward departure to determine that defendant is a level III risk.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   This category does not distinguish between adult and minor victims.

MUGGLIN, J.

MERCURE, J.P., CREW III, SPAIN and ROSE, JJ., concur.