                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 2, 2014                    514907
________________________________

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

DAVID L. LABRAKE,
                    Appellant.
________________________________


Calendar Date:   September 12, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                              __________


     Albert F. Lawrence, Greenfield Center, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                              __________


Stein, J.

      Appeal from an order of the County Court of St. Lawrence
County (Richards, J.), entered April 2, 2012, which classified
defendant as a risk level II sex offender pursuant to the Sex
Offender Registration Act.

      Defendant was convicted in 2010 of possession of a sexual
performance by a child, and was sentenced to a prison term of 1
to 3 years. As his release from prison neared, the Board of
Examiners of Sex Offenders prepared a risk assessment instrument
in accordance with the Sex Offender Registration Act
(see Correction Law art 6-C) that presumptively classified
defendant as a risk level I sex offender. County Court conducted
a hearing, after which it assigned 30 additional points under
risk factor 3 (number of victims). While defendant's overall
                              -2-                514907

score remained in the risk level I category, County Court found
an upward departure to be warranted and classified him as a risk
level II sex offender. Defendant now appeals, and we affirm.

      Defendant initially points out that County Court did not
issue the required written order setting forth its findings of
fact and conclusions of law. Remittal is not required, however,
as County Court made "oral findings and conclusions that 'are
clear, supported by the record and sufficiently detailed to
permit intelligent review'" (People v Hemmes, 110 AD3d 1387, 1388
[2013], quoting People v Carter, 106 AD3d 1202, 1203 [2013];
see Correction Law § 168-n [3]).

      Turning to the merits, defendant contends 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 Gauthier,
100 AD3d 1223, 1225 [2012]; see People v Gillotti, 23 NY3d 841,
   , 2014 NY Slip Op 04117, *11-12 [2014]). The People here
submitted reliable hearsay – in the form of the case summary, a
statement to police made by defendant's girlfriend and admissions
made by defendant in a federal plea agreement – establishing that
defendant was a longstanding consumer of child pornography who
had possessed thousands of images and videos at one point
(see People v Carter, 106 AD3d at 1203-1204; People v Christie,
94 AD3d 1263, 1263 [2012], lv denied 19 NY3d 808 [2012]). The
evidence further revealed that some of that material was
extremely graphic and depicted heinous acts against young
children. Defendant admitted that he had an addiction to
pornography and that he had been viewing it for nearly two
decades. Inasmuch as this proof showed that the presumptive risk
level did not adequately reflect the duration and degree of
defendant's child pornography habit, County Court providently
exercised its discretion in granting an upward departure (see
People v Gillotti, 2014 NY Slip Op 04117 at *5-6, 9; People v
Rotunno, 117 AD3d 1019 [2014], lv denied     NY3d     [Sept. 4,
2014]; People v Muirhead, 110 AD3d 1386, 1387 [2013], lv denied
23 NY3d 906 [2014]).

     Peter, P.J., Garry, Egan Jr. and Clark, JJ., concur.
                        -3-                  514907

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
