                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 7, 2014                     515775
________________________________

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

LESLIE L. BECKER,
                    Appellant.
________________________________


Calendar Date:   June 2, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

                              __________


     Adam G. Parisi, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.

                              __________


Devine, J.

      Appeal from an order of the County Court of Schenectady
County (Drago, J.), entered September 21, 2012, which classified
defendant as a risk level III sex offender and a sexually violent
offender pursuant to the Sex Offender Registration Act.

      Defendant was convicted in 2000 of numerous crimes stemming
from a sexual assault upon an elderly family member, and was
sentenced to an aggregate prison term of 15 years to be followed
by postrelease supervision of five years (288 AD2d 766 [2001],
lvs denied 97 NY2d 751 [2002]). The Board of Examiners of Sex
Offenders prepared a risk assessment instrument pursuant to the
Sex Offender Registration Act (see Correction Law art 6-C) that
scored defendant as having 75 points, presumptively classifying
him as a risk level II sexually violent offender. Following a
                              -2-                515775

hearing, County Court assessed defendant an additional 20 points
under risk factor 6 (helplessness of victim). Defendant remained
in the risk level II category with a score of 95 points, but
County Court nonetheless found an upward departure to be
warranted and classified him as a risk level III sexually violent
offender. Defendant now appeals.

      We affirm. "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 Nash, 114
AD3d 1008, 1008 [2014] [citations omitted]; see People v
Muirhead, 110 AD3d 1386, 1387 [2013], lv denied ___ NY3d ___
[June 26, 2014]). In that regard, County Court was free to
consider "reliable hearsay, including information contained in
the case summary, risk assessment instrument and presentence
investigation report, as well as 'any victim's statement'"
(People v Burch, 90 AD3d 1429, 1430-1431 [2011] [internal
citations omitted], quoting Correction Law § 168-n [3]; see
People v Mingo, 12 NY3d 563, 576 [2009]). Shortly after he was
sentenced for the offenses at issue here, defendant was also
convicted of unlawful imprisonment in the second degree, a
conviction that was not addressed in the risk assessment
instrument (see Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 14 [2006]). County Court
considered an affidavit of the victim of that offense, who
averred that defendant restrained her for several hours and
threatened to rape and kill her, and that she only escaped when
other individuals arrived on the scene. This evidence of the
separate conviction and the facts underlying it "provide[d] clear
and convincing evidence to support the upward departure from the
presumptive risk level classification" (People v Burch, 90 AD3d
at 1431; see People v Neuer, 86 AD3d 926, 927 [2011], lv
denied 17 NY3d 716 [2011]; see also People v Greene, 83 AD3d
1304, 1304 [2011], lv denied 17 NY3d 706 [2011]).

      In light of the foregoing, we need not reach defendant's
argument regarding the points assessed under risk factor 6 (see
People v McElhearn, 56 AD3d 978, 979 [2008]).

     Stein, J.P., McCarthy, Garry and Lynch, JJ., concur.
                        -3-                  515775

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
