         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1365
KA 11-01669
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER ZIMMERMAN, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Niagara County Court (Matthew J.
Murphy, III, J.), dated August 1, 2011. 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 under the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court properly assessed 15 points for his history of drug or
alcohol abuse as recommended in the risk assessment instrument
prepared by the Board of Examiners of Sex Offenders. The court’s
determination to accept that recommendation is supported by the
requisite clear and convincing evidence (see generally § 168-n [3]),
including defendant’s admission of drug and alcohol use as set forth
in the presentence report and in his initial statement to the police
(see People v Mundo, 98 AD3d 1292, 1292; People v Longtin, 54 AD3d
1110, 1111, lv denied 11 NY3d 714).

     Contrary to the further contention of defendant, the court
properly granted the People’s request for an upward departure from the
presumptive level two risk based on his score on the risk assessment
instrument and assessed him as a level three risk. An upward
departure is warranted where, as here, “ ‘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
McCollum, 41 AD3d 1187, 1188, lv denied 9 NY3d 807; see People v
Perrah, 99 AD3d 1257, 1257). The court properly relied upon the facts
of the underlying conviction, which involved sexual acts with children
in a park during the daytime, and defendant’s prior history of sexual
                                 -2-                          1365
                                                         KA 11-01669

acts with children, in determining that an upward departure to a level
three risk was warranted (see Correction Law §§ 168-l [6] [c]; 168-n
[3]; People v Howe, 49 AD3d 1302, 1302).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
