                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 17, 2016                    521558
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

GEORGE WHEELER,
                    Appellant.
________________________________


Calendar Date:    October 19, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                              __________


     James A. Sacco, Binghamton, for appellant.

      Gerald F. Mollen, District Attorney, Binghamton (David M.
Petrush of counsel), for respondent.

                              __________


Garry, J.

      Appeal from an order of the County Court of Broome County
(Smith, J.), entered March 12, 2015, which classified defendant
as a risk level three sex offender pursuant to the Sex Offender
Registration Act.

      Defendant was convicted in 2012 of possessing an obscene
sexual performance by a child and was sentenced to a prison term
of 1a to 4 years. In anticipation of his release from prison,
the Board of Examiners of Sex Offenders prepared a risk
assessment instrument (hereinafter RAI) in accordance with the
Sex Offender Registration Act (see Correction Law art 6-C) that
presumptively classified defendant as a risk level two sex
offender (75 points). The Board and the People, however,
recommended an upward departure to a risk level three
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classification. Following a hearing, County Court adopted the
Board's RAI and further determined that an upward departure to a
risk level three classification was warranted. Defendant now
appeals.

      We affirm. "An 'upward departure from the presumptive risk
level is justified when an aggravating factor, not adequately
taken into account by the risk assessment guidelines, is
established by clear and convincing evidence'" (People v Sabin,
139 AD3d 1282, 1282 [2016] [brackets omitted], lv denied ___ NY3d
___ [Oct. 25, 2016], quoting People v Auleta, 135 AD3d 1251, 1252
[2016], lv denied 27 NY3d 903 [2016]). "In rendering such a
determination, County Court may consider reliable hearsay
evidence such as the case summary, presentence investigation
report and the [RAI]" (People v Sabin, 139 AD3d at 1282 [internal
quotation marks and citation omitted]; see People v Becker, 120
AD3d 846, 847 [2014], lv denied 24 NY3d 908 [2014]).

      The reliable hearsay evidence, including the case summary
and presentence investigation report, demonstrates that defendant
admitted to being a pedophile and that he had been viewing child
pornography for two years. Defendant would seek out pornography
involving girls who are five years old and older; he was found
with approximately 30 compact discs containing child pornography
in his basement and over 27,000 pornographic images stored on his
computer and cell phone, including numerous images of children
involved in sex acts and a video of an adult having sexual
contact with a child. His cell phone was also used, apparently
surreptitiously, to film a video of a young girl sitting on a
bus. In light of the aggravating factors not taken into
consideration by the RAI – including the duration and degree of
defendant's child pornography habit and his obsession with young
girls – we find County Court's determination that an upward
departure was warranted is supported by clear and convincing
evidence (see People v Burke, 139 AD3d 1268, 1270 [2016]; People
v Labrake, 121 AD3d 1134, 1135-1136 [2014]).

      We reject defendant's contention that County Court did not
properly consider evidence that he was scored at a medium-low
risk of recidivism under a STATIC-99 risk evaluation instrument
in making the determination. This instrument was submitted and
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reviewed in the course of the hearing, and the court retained the
discretion to determine what weight it should be afforded (see
People v Ferrer, 69 AD3d 513, 514 [2010], lv denied 14 NY3d 709
[2010]). Considering the evidence warranting an upward departure
from the presumptive risk assessment, we do not find that County
Court erred in classifying defendant as a risk level three sex
offender, despite his test scores. Defendant's remaining claims
have been considered and found to be without merit.

     Peters, P.J., Egan Jr., Rose and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
