People v. Lightaul

• Decision Date: 14 April 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Frederick M. LIGHTAUL Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1256

30 N.Y.S.3d 739

2016 N.Y. Slip Op. 02873

The PEOPLE of the State of New York, Respondent,

v.Frederick M. LIGHTAUL Jr., Appellant.

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

April 14, 2016.

John A. Cirando, Syracuse, for appellant.

William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

DEVINE

, J.

Appeal from an order of the County Court of Madison County (McDermott, J.), entered August 15, 2013, which classified defendant as a risk level III sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to the crime of attempted sexual abuse in the first degree as the result of his sexual contact with a 17–year–old girl (hereinafter the victim) and was sentenced to three years in prison. As his release from prison neared, the Board of Examiners of Sex Offenders completed a risk assessment instrument (hereinafter RAI) that presumptively classified defendant as a risk level I sex offender and a sexually violent offender in accordance with the Sex Offender Registration Act (see Correction Law art 6–C). The Board and the People both recommended an upward departure to risk level II based upon defendant's prior sexual abuse of the victim's sister. Following a hearing, County Court declined to assess points under certain risk factors as recommended by the RAI and found defendant to presumptively be a risk level I sex offender. County Court nevertheless found that an upward departure was warranted and classified defendant as a risk level III sex offender and a sexually violent offender. Defendant now appeals, arguing that his classification as a risk level III sex offender was in error.

We disagree and affirm. “An upward departure from a presumptive risk level classification may be ordered where there is clear and convincing evidence of an aggravating factor not otherwise taken into account in the RAI” (People v. Adam, 126 A.D.3d 1169, 1170, 5 N.Y.S.3d 592 [2015]

, lv. denied 25 N.Y.3d 911, 2015 WL 3618529 [2015] [citations omitted]; see

People v. Cruz, 134 A.D.3d 1357, 1358, 22 N.Y.S.3d 251 [2015] ). County Court relied upon reliable hearsay contained in the case summary, presentence investigation report and a confidential sexual assessment of defendant that reveal aggravating factors not taken into account in the RAI (see

People v. Adam, 126 A.D.3d at 1170, 5 N.Y.S.3d 592 ). Foremost among those factors is that defendant abused an additional victim, as he engaged in sexual intercourse with the victim's underage sister in 2008 and was never criminally prosecuted for that conduct. Contrary to defendant's contention, the record further supports that he violated a valid order of protection by having unsupervised contact with the victim at the time of the present offense. In our view, this evidence provides clear and convincing evidence to support County Court's determination (see People v. Smith, 128 A.D.3d 1189, 1190, 9 N.Y.S.3d 462 [2015]

; People v. Nash, 114 A.D.3d 1008, 1009, 980 N.Y.S.2d 168 [2014] ; People v. Thornton, 34 A.D.3d 1026, 1027, 824 N.Y.S.2d 459 [2006], lv. denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007] ).

Finally, we reject defendant's argument that he was denied the effective...