PEOPLE v. GINYARD (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Raymond Guzman, J.), dated July 24, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the People's application, upon the recommendation of the Board of Examiners of Sex Offenders (hereinafter the Board), for an upward departure from the presumptive risk level two designation to risk level three.  The People demonstrated, by clear and convincing evidence, that there was an aggravating factor not adequately taken into account by the Board's risk assessment instrument (hereinafter RAI) (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  Specifically, on July 16, 2003, before committing the sex offense upon which the RAI was based, the defendant was arrested and charged with committing a sex offense in South Carolina.  The sex offense upon which the RAI was based occurred between July 1, 2004, and October 31, 2005.  He was convicted of that offense, upon his plea of guilty, on November 2, 2005.  On November 10, 2005, the defendant pleaded guilty to contributing to the delinquency of a minor in South Carolina based on the July 2003 incident;  however, the RAI did not account for the defendant's subsequent conviction.  The case summary and the documentation relating to the defendant's conviction in South Carolina indicate that the defendant, who was then 25 years old, admitted to having sexual intercourse with a 15–year–old girl in South Carolina.  These documents constitute reliable hearsay and provided clear and convincing evidence supporting the court's determination to grant the People's application for an upward departure (see People v. Mingo, 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983;  People v. Palmer, 68 A.D.3d 1364, 1366, 892 N.Y.S.2d 232).

The defendant's remaining contentions are without merit.

Accordingly, the Supreme Court providently exercised its discretion in designating the defendant a level three sex offender.

SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.