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

828
KA 11-01475
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERARD J. RYAN, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER 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 (Sara S.
Sperrazza, J.), entered July 7, 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: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court’s
upward departure from his presumptive classification as a level two
risk to a level three risk is not supported by clear and convincing
evidence. Contrary to defendant’s contention, we conclude that the
People presented “the requisite clear and convincing evidence ‘that
there exist[] . . . aggravating . . . factor[s] 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 Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 4 [2006]; see also People v Howe, 49
AD3d 1302).

     Initially, we note that, although defendant was not assessed any
points under the risk assessment instrument for a prior sex crime,
there is clear and convincing evidence that he committed various sex
offenses during the summers of 2005 and 2006 that resulted in two
separate convictions in different counties. Such concurrent
convictions may provide the basis for an upward departure if they are
“indicative that the offender poses an increased risk to public
safety” (Risk Assessment Guidelines and Commentary, at 14; see People
v Vasquez, 49 AD3d 1282, 1284-1285; see also People v Neuer, 86 AD3d
926, 927, lv denied 17 NY3d 716). There is also clear and convincing
                                 -2-                           828
                                                         KA 11-01475

evidence that defendant lived a transient lifestyle, traveling between
campgrounds (see People v Briggs, 86 AD3d 903, 905) and, indeed, that
he committed sex offenses at those campgrounds.

     Finally, it appears that the Board of Examiners of Sex Offenders
did not consider defendant’s convictions of endangering the welfare of
a child in its assessment of points under the risk assessment
instrument, inasmuch as that offense does not fall within the
definition of a sex offense for registration purposes (see Correction
Law § 168-a [2]; People v Brown, 45 AD3d 1123, 1124, lv denied 10 NY3d
703). Nevertheless, defendant’s convictions of endangering the
welfare of a child appear to have been based on his having exposed
himself to his stepgrandchildren, and we agree with the court that
such conduct was not adequately taken into account by the risk
assessment instrument (see Brown, 45 AD3d at 1124; see also Vasquez,
49 AD3d at 1283-1285). We thus conclude that the record establishes
that “the risk of repeat offense is high and there exists a threat to
the public safety” to warrant an upward departure to a level three
risk (§ 168-l [6] [c]).




Entered:   June 29, 2012                        Frances E. Cafarell
                                                Clerk of the Court
