                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    517857
________________________________

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

FREDERICK M. LIGHTAUL JR.,
                    Appellant.
________________________________


Calendar Date:   February 11, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     John A. Cirando, Syracuse, for appellant.

      William G. Gabor, District Attorney, Wampsville (Elizabeth
S. Healy of counsel), for respondent.

                             __________


Devine, J.

      Appeal from an order of the County Court of Madison County
(McDermott, J.), entered August 15, 2013, which classified
defendant as a risk level III sex offender and a sexually violent
offender pursuant to the Sex Offender Registration Act.

      Defendant pleaded guilty to the crime of attempted sexual
abuse in the first degree as the result of his sexual contact
with a 17-year-old girl (hereinafter the victim) and was
sentenced to three years in prison. As his release from prison
neared, the Board of Examiners of Sex Offenders completed a risk
assessment instrument (hereinafter RAI) that presumptively
classified defendant as a risk level I sex offender and a
sexually violent offender in accordance with the Sex Offender
Registration Act (see Correction Law art 6-C). The Board and the
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People both recommended an upward departure to risk level II
based upon defendant's prior sexual abuse of the victim's sister.
Following a hearing, County Court declined to assess points under
certain risk factors as recommended by the RAI and found
defendant to presumptively be a risk level I sex offender.
County Court nevertheless found that an upward departure was
warranted and classified defendant as a risk level III sex
offender and a sexually violent offender. Defendant now appeals,
arguing that his classification as a risk level III sex offender
was in error.

      We disagree and affirm. "An upward departure from a
presumptive risk level classification may be ordered where there
is clear and convincing evidence of an aggravating factor not
otherwise taken into account in the RAI" (People v Adam, 126 AD3d
1169, 1170 [2015], lv denied 25 NY3d 911 [2015] [citations
omitted]; see People v Cruz, 134 AD3d 1357, 1358 [2015]). County
Court relied upon reliable hearsay contained in the case summary,
presentence investigation report and a confidential sexual
assessment of defendant that reveal aggravating factors not taken
into account in the RAI (see People v Adam, 126 AD3d at 1170).
Foremost among those factors is that defendant abused an
additional victim, as he engaged in sexual intercourse with the
victim's underage sister in 2008 and was never criminally
prosecuted for that conduct. Contrary to defendant's contention,
the record further supports that he violated a valid order of
protection by having unsupervised contact with the victim at the
time of the present offense. In our view, this evidence provides
clear and convincing evidence to support County Court's
determination (see People v Smith, 128 AD3d 1189, 1190 [2015];
People v Nash, 114 AD3d 1008, 1009 [2014]; People v Thornton, 34
AD3d 1026, 1027 [2006], lv denied 8 NY3d 806 [2007]).

      Finally, we reject defendant's argument that he was denied
the effective assistance of counsel. Defense counsel
successfully challenged the assessment of points on the RAI under
two risk factors and raised appropriate objections to the Board's
recommended departure. Thus, "[v]iewing the totality of the
circumstances at the time of the representation, we find that
defendant was provided with meaningful representation" (People v
Carey, 47 AD3d 1079, 1080 [2008], lv dismissed 10 NY3d 893
                              -3-                  517857

[2008]; see People v Nichols, 80 AD3d 1013, 1014 [2011]).

     Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
