        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

144
KA 11-00064
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATHAN INSKEEP, DEFENDANT-APPELLANT.


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), dated November 19, 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: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). We reject defendant’s contention that
County Court erred in granting the request of the Board of Examiners
of Sex Offenders for an upward departure from defendant’s presumptive
level two risk to a level three risk. The court’s determination is
supported by clear and convincing evidence of “ ‘an aggravating . . .
factor of a kind, or to a degree, not otherwise adequately taken into
account by the [risk assessment] guidelines’ ” (People v McCollum, 41
AD3d 1187, 1188, lv denied 9 NY3d 807). Defendant admitted that,
while he was incarcerated in Texas, it was “common practice” to
masturbate in the presence of female correction officers and that he
therefore sought out women in public places in order to masturbate.
Defendant was convicted of attempted rape in the first degree (Penal
Law §§ 110.00, 130.35 [1]), arising from an incident in which he
entered a store and began to masturbate in front of a woman who was
working alone late at night. He then attacked the woman when she
attempted to force him to leave the store. Defendant was also charged
in connection with two prior incidents of masturbating in public.
Further, defendant had previously been convicted of a violent felony
in Texas and was charged with the instant offense after absconding
from parole supervision in Texas. Where, as here, “ ‘the risk of a
repeat offense is high and there is a threat to the public safety, a
level three designation is appropriate’ ” (McCollum, 41 AD3d at 1188;
                                 -2-                  144
                                                KA 11-00064

see Correction Law § 168-l [6] [c]).




Entered:   January 31, 2012            Frances E. Cafarell
                                       Clerk of the Court
