                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 30, 2016                      520923
________________________________

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

JOSEPH GUYETTE,
                    Appellant.
________________________________


Calendar Date:    May 31, 2016

Before:   Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                              __________


     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 II 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
                              -2-                520923

defendant as risk level I sex offender. However, the Board and
the People recommended an upward departure to a risk level II
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
I category, the court determined that an upward departure was
warranted and thereafter classified defendant as a risk level II
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
[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 I 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
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
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pornography for over 1½ years, and defendant admitted in his
sworn statement to deviant sexual arousal by masturbation while
viewing the images. Furthermore, the evidence reveals, among
other things, that defendant entered into online chats with
children during which he asked about their genitalia and that
they masturbate. In view of the foregoing, County Court
appropriately found that the RAI did not adequately take into
account the aggravating circumstances of defendant's conduct, and
we find no abuse of discretion in defendant's classification as a
risk level II sex offender (see People v Rowe, 136 AD3d 1125
[2016]; People v Bower, 127 AD3d at 1508; People v Labrake, 121
AD3d at 1135-1136; People v Gauthier, 100 AD3d 1223, 1225
[2012]).

     Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
