                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 30, 2015                    517422
________________________________

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

CHRISTOPHER TUCKER,
                    Appellant.
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Calendar Date:   March 25, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

                             __________


     Martin J. McGuinness, Saratoga Springs, for appellant.

      Kevin C. Kortright, District Attorney, Fort Edward (Sara E.
Fisher of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order of the County Court of Washington
County (McKeighan, J.), entered July 23, 2013, which classified
defendant as a risk level II sex offender pursuant to the Sex
Offender Registration Act.

      Following a 2009 jury trial, defendant was convicted of
possessing a sexual performance by a child and perjury in the
first degree. Prior to defendant's release from prison, the
Board of Examiners of Sex Offenders prepared a risk assessment
instrument that presumptively classified him as a risk level I
sex offender (50 points) under the Sex Offender Registration Act
(see Correction Law art 6-C). The Board and the People
recommended an upward departure to risk level II based upon his
inappropriate behavior toward several underage girls. County
                                -2-               517422

Court conducted a hearing and agreed that an upward departure was
warranted, classifying defendant as a risk level II sex offender.
Defendant now appeals, arguing "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' risk assessment instrument such as to warrant an upward
departure in the risk level" (People v Labrake, 121 AD3d 1134,
1135 [2014], quoting People v Gauthier, 100 AD3d 1223, 1225
[2012]).

      We disagree and affirm. The People submitted reliable
hearsay – in the form of the case summary, statements made by
multiple children, grand jury testimony and the presentence
investigation report – documenting that defendant had sexually
abused at least one child (see Correction Law § 168-n [3]; People
v Mingo, 12 NY3d 563, 572-573 [2009]).1 Moreover, while the risk
assessment instrument did note defendant's prior conviction for
endangering the welfare of a child, it did not address the fact
that said conviction stemmed from his course of sexually
inappropriate conduct toward young girls. Clear and convincing
evidence accordingly established that the risk assessment
instrument did not adequately account for defendant's pattern of
offenses involving underage girls, and County Court properly
classified defendant as a risk level II sex offender (see People
v McElhearn, 56 AD3d 978, 979 [2008], lv denied 13 NY3d 706
[2009]; People v Mann, 52 AD3d 884, 885-886 [2008]).

        McCarthy, Garry and Lynch, JJ., concur.



    1
        As a result of his conduct, defendant faced a charge of
sexual abuse in the first degree that was reduced to a
misdemeanor and ultimately dismissed on speedy trial grounds.
Contrary to his intimations, a dismissal under those
circumstances is not a "determination that the acts alleged did
not occur" and would not preclude County Court from considering
evidence of the abuse (People ex rel. Pickett v Ruffo, 96 AD2d
128, 130 [1983]; see e.g. People v Lawrence, 64 NY2d 200, 205
[1984] [speedy trial motions do not involve "the ultimate
determination of guilt or innocence"]).
                        -3-                  517422

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
