                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 19, 2016                       520924
________________________________

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

ABRAHAM S. SABIN,
                    Appellant.
________________________________


Calendar Date:    April 19, 2016

Before:    Peters, P.J., Garry, Rose, Clark and Aarons, JJ.

                              __________


     Lisa A. Burgess, Indian Lake, for appellant.

      Craig P. Carriero, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                              __________


Rose, J.

      Appeal from an order of the County Court of Franklin County
(Main Jr., J.), entered February 19, 2015, which classified
defendant as a risk level III sex offender pursuant to the Sex
Offender Registration Act.

      Defendant pleaded guilty to sexual abuse in the first
degree stemming from his sexual contact with a seven-year-old
girl, and he was sentenced to a prison term of seven years
followed by 10 years of postrelease supervision. Prior to his
release from prison, the Board of Examiners of Sex Offenders
prepared a risk assessment instrument that presumptively
classified defendant as a risk level II sexually violent offender
under the Sex Offender Registration Act (see Correction Law art
6-C). However, the Board and the People recommended an upward
                              -2-                520924

departure to a risk level III. Following a hearing, County Court
determined that an upward departure was warranted and thereafter
classified defendant as a risk level III sexually violent
offender. Defendant now appeals.

      We affirm. An "[u]pward departure from the presumptive
risk level is justified when an aggravating factor, not
adequately taken into account by the risk assessment guidelines,
is established by clear and convincing evidence" (People v
Auleta, 135 AD3d 1251, 1252 [2016] [internal quotation marks and
citations omitted]). In rendering such a determination, County
Court "may consider reliable hearsay evidence such as the case
summary, presentence investigation report and risk assessment
instrument" (People v Nash, 114 AD3d 1008, 1008 [2014]; see
People v Becker, 120 AD3d 846, 847 [2014], lv denied 24 NY3d 908
[2014]). Where the nature of the conduct underlying the
conviction is not adequately accounted for in the risk assessment
instrument, it may form the basis for an upward modification of a
defendant's risk level (see People v Nash, 114 AD3d at 1008;
People v Greene, 83 AD3d 1304, 1304 [2011], lv denied 17 NY3d 706
[2011]).

      Here, information in the case summary and presentence
investigation report note defendant's emotional congruency with
children and, when questioned by the victim's mother about
reportedly strange behavior with children, he assured her that he
was simply more comfortable with them than with adults and that
he would never hurt a child. The information also reflected that
defendant bought the victim gifts on a daily basis and, even
after the mother asked him to stop, he surreptitiously continued
to do so in an attempt to groom the child. Further, the
information also established that defendant brazenly engaged in
sexual abuse of the victim while the mother was in close
proximity and that defendant, while displaying a knife, told the
victim that he would be in trouble if she told of his conduct.
Given these circumstances, clear and convincing evidence
demonstrated aggravating factors regarding the nature of
defendant's conduct that were not adequately taken into
consideration by the risk assessment instrument, and County
Court's upward departure was warranted (see People v Rowe, 136
AD3d 1125, 1126 [2016]; People v O'Connell, 95 AD3d 1460, 1460-
                              -3-                  520924

1461 [2012]; People v Wasley, 73 AD3d 1400, 1400-1401 [2010]).

     Peters, P.J., Garry, Clark and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
