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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Joshua D. HEICHEL, Defendant-Appellant.

Decided: July 01, 2005

PRESENT:  PIGOTT, JR., P.J., KEHOE, SMITH, LAWTON, AND HAYES, JJ. Law Offices of Jon Louis Wilson, Lockport (Edward J. Martin of Counsel), for Defendant-Appellant. Joseph V. Cardone, District Attorney, Albion, for Plaintiff-Respondent.

 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.).   Defendant was convicted upon his plea of guilty of attempted sexual abuse in the first degree with respect to an eight-year-old relative.   Contrary to defendant's contention, the People established by clear and convincing evidence that defendant did not begin to accept responsibility for the offense and undergo treatment until six years after he committed the offense, when he was faced with the prospect of punishment for the offense (see generally People v. Tilley, 305 A.D.2d 1041, 1041-1042, 758 N.Y.S.2d 891, lv. denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491).   Also, at the time of the hearing to determine his risk level, defendant was residing in an apartment that was inappropriate because of its proximity to a park where children played.

 Contrary to defendant's further contention, County Court's upward departure from the presumptive risk level in determining that defendant is a level three risk rather than a level two risk is supported by clear and convincing evidence (see generally People v. Carswell, 8 A.D.3d 1073, 778 N.Y.S.2d 646, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 24, 818 N.E.2d 666;  People v. Hitt, 7 A.D.3d 813, 776 N.Y.S.2d 886, lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665).   If the risk of a repeat offense is high and there is a threat to the public safety, a level three designation is appropriate (see Correction Law § 168-l [6][c] ).  In assessing the risk of a repeat offense by a sex offender and the threat posed to the public safety, the court should consider “criminal history factors indicative of [a] high risk of repeat offense, including ․ whether the sex offender committed the felony sex offense against a child ․ [and] the age of the sex offender at the time of the commission of the first sex offense” (§ 168-l [5][a][iv], [v] ).  Other criminal history factors to be considered by the court include “the number, date and nature of prior offenses” (§ 168-l [5][b][iii] ).   Here, the court considered evidence that defendant committed repeated sex offenses against a six-year-old relative in 1993, when defendant was 19 years old.   Although defendant was never charged with those sex offenses, he did not deny his commission thereof.  “Upon our review of the record, we conclude that the court's determination of defendant's risk level was properly based on clear and convincing evidence related to the statutory factors” (People v. Brown, 302 A.D.2d 919, 921, 755 N.Y.S.2d 183;  see People v. Scott, 288 A.D.2d 763, 764-765, 733 N.Y.S.2d 744).

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


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