People v. Beames

• Decision Date: 15 November 2012
• Citation: 953 N.Y.S.2d 730,2012 N.Y. Slip Op. 07732,100 A.D.3d 1163
• Parties: The PEOPLE of the State of New York, Respondent, v. Patrick J. BEAMES, Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1163

953 N.Y.S.2d 730

2012 N.Y. Slip Op. 07732

The PEOPLE of the State of New York, Respondent,

v.Patrick J. BEAMES, Appellant.

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

Nov. 15, 2012.

Teresa C. Mulliken, Harpersfield, for appellant.

Amy B. Merklen, Special Prosecutor, Roxbury, for respondent.

Before: MERCURE, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.

MERCURE, J.P.

Appeal from an order of the County Court of Delaware County (Becker, J.), entered July 14, 2011, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted upon his plea of guilty of the crime of rape in the third degree and sentenced to 1 to 3 years in prison. In anticipation of his release from prison, the Board of Examiners of Sex Offenders completed a risk assessment instrument in which defendant was presumptively classified as a risk level II sex offender under the Sex Offender Registration Act ( see Correction Law art. 6–C). However, the Board recommended an upward departure from the presumptive classification to a risk level III. At the conclusion of a risk assessment hearing, County Court agreed with the Board and classified defendant as a risk level III sex offender. Upon defendant's appeal, we reversed and remitted the matter to County Court for further proceedings (71 A.D.3d 1300, 896 N.Y.S.2d 530 [2010] ). Following a conference with the parties, County Court again classified defendant as a risk level III sex offender and defendant now appeals.

“An upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence” ( People v. Stewart, 77 A.D.3d 1029, 1030, 908 N.Y.S.2d 767 [2010] [citations omitted] ). Such evidence may consist of reliable hearsay, including the case summary where defendant did not dispute the relevant contents ( see id.;People v. Wasley, 73 A.D.3d 1400, 1401, 902 N.Y.S.2d 686 [2010] ). County Court's decision reflects that an upward departure was warranted based upon defendant's history of sexual offenses targeted at teenagers and younger females, particularly an offense committed against the 10–year–old sister of defendant's then 16–year–old girlfriend, which constituted aggravated circumstances not adequately reflected in the risk assessment...