People v. Stewart

• Decision Date: 14 October 2010
• Citation: 77 A.D.3d 1029,908 N.Y.S.2d 767
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald J. STEWART, Appellant.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 767

77 A.D.3d 1029

The PEOPLE of the State of New York, Respondent,

v.Donald J. STEWART, Appellant.

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

Oct. 14, 2010.

Eugene P. Grimmick, Troy, for appellant.

Richard J. McNally Jr., District Attorney, Troy (Gordon Eddy of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and GARRY, JJ.

MERCURE, J.

Appeal from an order of the County Court of Rensselaer County (Ceresia, J.), entered July 17, 2009, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

The relevant facts are more fully set forth in our prior decision in this matter (61 A.D.3d 1059, 876 N.Y.S.2d 208 [2009] ). As relevant here, in anticipation of defendant's release from prison following his conviction for aggravated sexual abuse in the second degree, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level II sex offender (90 points) in accordance with the Sex Offender Registration Act ( see Correction Law art. 6-C). However, the Board recommended an upward departure from that risk level. Upon remittal from this Court to determine whether an upward departure is warranted, County Court held a hearing, after which it agreed with the People that an upward departure is appropriate and denominated defendant a risk level III sex offender. Defendant now appeals.

We affirm. 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 ( see People v. Beames, 71 A.D.3d 1300, 1300, 896 N.Y.S.2d 530 [2010]; People v. Palmer, 68 A.D.3d 1364, 1366, 892 N.Y.S.2d 232 [2009] ). To that end, the court may consider reliable hearsay evidence, including the case summary, risk level assessment instrument and presentence investigation report ( see Correction Law § 168-n[3]; People v. Palmer, 68 A.D.3d at 1366, 892 N.Y.S.2d 232; People v. LaRock, 45 A.D.3d 1121, 1122, 846 N.Y.S.2d 685 [2007] ). Here, 20 points were assessed in the risk assessment instrument for a continuing course of sexual misconduct. However, we agree with County Court that this "did not adequately reflect the aggravating factors of the length and nature of defendant's abuse" towards his seven-year-old victim, where the case summary and presentence investigation report establish that he had repeated contact with the victim's breasts and genitals, causing contusions and pain, and the conduct continued for well over a year ( People v. Leibach, 39 A.D.3d 1093, 1094, 832 N.Y.S.2d 825 [2007], lv. denied 9 N.Y.3d 806, 842...