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

831
KA 13-01178
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ROBERT D. SCOTT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), dated May 28, 2013. 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
([SORA] Correction Law § 168 et seq.). Contrary to defendant’s
contention, County Court properly agreed with the recommendation of
the Board of Examiners of Sex Offenders that an upward departure from
the presumptive risk level was warranted based upon aggravating
factors not taken into account by the risk assessment guidelines,
i.e., those relating to his risk of re-offense. Contrary to
defendant’s contention, the court properly concluded that the
guidelines did not adequately take into account his lack of insight
into the inappropriateness of his conduct (see People v Cruz, 111 AD3d
685, 685-686, lv denied 22 NY3d 860), and that defendant’s California
felony conviction, while not a “sex offense” under SORA (see § 168-a
[2] [d] [i], [ii]), nevertheless had a sexual component (see People v
Faver, 113 AD3d 662, 663, lv denied 22 NY3d 865; People v Galindo, 107
AD3d 603, 604). In addition, the evidence supports the court’s
conclusion that those factors are causally related to defendant’s risk
of re-offense (see People v Abraham, 39 AD3d 1208, 1209). Finally, we
conclude that defendant received effective assistance of counsel at
the SORA hearing (see People v Russell, 115 AD3d 1236, 1236).



Entered:    July 3, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
