THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KEEGAN ROBERTSON DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEEGAN ROBERTSON, DEFENDANT–APPELLANT.

KA 12–00112

Decided: December 21, 2012

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ. J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT–APPELLANT. BARRY PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.

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 ( [SORA] Correction Law § 168 et seq.).   We reject defendant's contention that County Court erred in assessing 30 points against him under risk factor 3, for having three or more victims.  “[I]t is well settled that, in determining the number of victims for SORA purposes, the hearing court is not limited to the crime of which defendant was convicted” (People v. Gardiner, 92 AD3d 1228, 1229, lv denied 19 NY3d 801).   Here, the court properly considered “reliable hearsay evidence,” including defendant's statements to the police, in determining the number of victims (§ 168–n [3];  see People v. Christie, 94 AD3d 1263, 1263, lv denied 19 NY3d 808).

The court also properly denied defendant's request for a downward departure from his presumptive risk level based upon his young age at the time of the underlying offenses.   A departure from the presumptive risk level is warranted where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [risk assessment] guidelines” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [2006];  see People v. Cummings, 81 AD3d 1261, 1262, lv denied 16 NY3d 711).   Here, the guidelines adequately addressed defendant's age when he committed his first sex crime, and the court properly assessed 10 points under risk factor 8 because, at age 20 or less, he committed a sex offense that resulted in an adjudication or a conviction of a sex crime.

Frances E. Cafarell

Clerk of the Court