           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
614
KA 10-00357
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DENNIS TOOLEY, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (Frederick G.
Reed, A.J.), dated January 28, 2010. 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: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court properly determined that an upward departure from his
presumptive risk level was warranted. During the presentence
investigation interview, defendant admitted that he had previously
sexually abused two other individuals who were not victims with
respect to the underlying conviction, and that aggravating factor was
not adequately taken into account by the risk assessment guidelines.
Thus, the upward departure that resulted in defendant’s classification
as a level three risk is supported by the requisite clear and
convincing evidence (see § 168-n [3]; People v Farrell, 78 AD3d 1454,
1455; People v McCollum, 41 AD3d 1187, lv denied 9 NY3d 807; see also
People v Cummings, 81 AD3d 1261).




Entered:   May 6, 2011                             Patricia L. Morgan
                                                   Clerk of the Court
