People v. Witherspoon

• Decision Date: 10 June 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. David A. WITHERSPOON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1674

34 N.Y.S.3d 818

2016 N.Y. Slip Op. 04575

The PEOPLE of the State of New York, Respondent,

v.David A. WITHERSPOON, Defendant–Appellant.

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

June 10, 2016.

Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant.

Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.

MEMORANDUM:

On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.

), defendant contends that County Court's upward departure from his presumptive classification as a level two risk is not supported by clear and convincing evidence. We reject that contention. “ ‘The court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument’ ” (People v. Tidd, 128 A.D.3d 1537, 1537, 9 N.Y.S.3d 517

, lv. denied 25 N.Y.3d 913, 2015 WL 3971352 ). We reject defendant's further contention that the court improperly admitted a sworn deposition from each of the two victims inasmuch as those depositions constitute “reliable hearsay” that the court could properly consider in making an upward departure (§ 168–n [3 ]; see

People v. Pichcuskie, 111 A.D.3d 1344, 1344, 974 N.Y.S.2d 728, lv. denied 22 N.Y.3d 861, 2014 WL 593206 ).

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