         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
88
KA 10-01389
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATHANIEL SHEPARD, III, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered June 7, 2010. The order determined that defendant
is a level three risk pursuant to the Sex Offender Registration Act.

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

     Memorandum: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that County Court
violated his due process rights by ordering an upward departure from
his presumptive risk level without informing him that it intended to
consider such a departure, which the People had not requested.
Defendant, however, failed to preserve that contention for our review
(see generally People v Wroten, 286 AD2d 189, 195-196, lv denied 97
NY2d 610).

     Defendant further contends that the court abused its discretion
in finding that a departure from risk level two to risk level three
was justified by the evidence adduced at the SORA hearing. “A court
may make an upward departure from a presumptive risk level when, after
consideration of the indicated factors . . . [,] there exists an
aggravating . . . factor of a kind, or to a degree, not otherwise
adequately taken into account by the [risk assessment] guidelines”
(People v Grady, 81 AD3d 1464, 1464; see People v Howe, 49 AD3d 1302,
1302). Here, the court properly based its upward departure on
reliable hearsay from the presentence report and the case summary,
which demonstrates that defendant forcibly raped a 10-year-old girl
when he was 11 years old and participated in the gang rape of a 14-
year-old girl when he was 15 years old. Contrary to defendant’s
assertion, his commission of those illegal sexual acts as a youth is
an aggravating factor not adequately accounted for by the risk
                                 -2-                            88
                                                         KA 10-01389

assessment instrument. Although defendant had been assessed, inter
alia, 30 points under risk factor 9 (“Number and nature of prior
crimes”), that assessment was based solely on his prior attempted
robbery convictions. As the People correctly note, defendant could
not have been assessed points under risk factor 9 for raping the 10-
year-old girl or for later gang-raping the 14-year-old girl because he
was neither convicted of a crime for either act nor adjudicated a
juvenile delinquent for a sex offense based on either act. Thus, the
court properly relied on defendant’s prior juvenile sex offenses in
determining that he poses a level three risk of reoffending.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
