People v Guyette |
2016 NY Slip Op 05203 [140 AD3d 1555] |
June 30, 2016 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York, Respondent, v Joseph Guyette, Appellant. |
Theresa Suozzi, Saratoga Springs, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Mulvey, J. Appeal from an order of the County Court of Saratoga County (Sypniewski, J.), entered January 27, 2015, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.
In satisfaction of a 74-count indictment, defendant pleaded guilty to 10 counts each of promoting a sexual performance by a child and possessing a sexual performance by a child and was sentenced to concurrent prison terms of 1 to 3 years on each count. Prior to his release from prison, the Board of Examiners of Sex Offenders prepared a Risk Assessment Instrument (hereinafter RAI) pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) and assessed defendant 20 points for risk factor 5 (age of victim), presumptively classifying defendant as risk level one sex offender. However, the Board and the People recommended an upward departure to a risk level two classification. Following a hearing, County Court assessed 30 points for risk factor 3 (number of victims) and 20 points for risk factor 7 (relationship with victim as a stranger). Although defendant's presumptive classification remained in the risk level one category, the court determined that an upward departure was warranted and thereafter classified defendant as a risk level two sex offender. Defendant now appeals.
Initially, to the extent that defendant contends that County Court did not sufficiently set forth its findings and conclusions of law, we note that despite the lack of a detailed written order, the court "made oral findings and conclusions that are clear, supported by the record and sufficiently detailed to permit intelligent review" (People v Labrake, 121 AD3d 1134, 1135[*2][2014]). Next, with regard to County Court's assessment of an additional 50 points on the RAI, we note that defendant is not aggrieved as, even with a final score of 70 points, he remained within the presumptive classification of a risk level one sex offender. In any event, we find that the points for risk factors 3 and 7 were properly assessed as defendant possessed over 220 pornographic images of children (see People v Gillotti, 23 NY3d 841, 845 [2014]), and the children in the images were clearly strangers to defendant (see People v Johnson, 11 NY3d 416, 420-421 [2008]).
Turning to the merits, we are unpersuaded by defendant's contention that the record
does not contain clear and convincing evidence to support the existence of an
aggravating factor that was not adequately taken into account in the RAI. It is well settled
that "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
Bower, 127 AD3d 1507, 1508 [2015], lv denied 26 NY3d 910 [2015];
see People v Gillotti, 23 NY3d at 861-862). The reliable hearsay evidence
submitted by the People, including the case summary, presentence investigation report
and defendant's sworn statement to police, established defendant's daily downloading and
viewing of child pornography for over 1
Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the order is affirmed, without costs.