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

1048
KA 11-01154
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUKE M. PERRAH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered April 26, 2011. The order determined that defendant
is a level two 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 adjudicating him to be a
level two risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that County Court
erred in making an upward departure to a risk level two from the
presumptive level one risk. We reject that contention. An upward
departure from a presumptive risk level is warranted where “ ‘there
exists an aggravating . . . factor 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 People v Howe, 49 AD3d 1302, 1302). “There must exist clear
and convincing evidence of the existence of special circumstance[s] to
warrant an upward or downward departure” (People v Hamelinck, 23 AD3d
1060, 1060 [internal quotation marks omitted]; see People v Sawyer, 78
AD3d 1517, 1518, lv denied 16 NY3d 704; People v Gandy, 35 AD3d 1163,
1164), and such evidence must be established by “[r]eliable hearsay,”
including case summaries, presentence reports, and grand jury
testimony (People v Mingo, 12 NY3d 563, 572-573; see People v
Gardiner, 92 AD3d 1228, 1229, lv denied 19 NY3d 801; People v
Alvarado, 79 AD3d 1719, 1719, lv denied 16 NY3d 707).

     Here, the court properly relied on the case summary, the
presentence reports, and defendant’s own testimony at the SORA hearing
in determining that the upward departure was justified based upon two
factors not reflected in the risk assessment instrument: (1)
“defendant’s denial or at least hedging about the prior sexual abuse”
                                 -2-                          1048
                                                         KA 11-01154

- as evidenced by his denial of wrongdoing in his 2006 presentence
report with respect to a conviction of endangering the welfare of a
child, as well as his explanation of that crime in court; and (2) his
“lack of candor about his own history of abuse,” as evidenced by
defendant’s failure to disclose that abuse in connection with his
first presentence report. Furthermore, as the People correctly
contend, defendant’s commission of the instant offense while engaged
in sex offender counseling for the prior offense demonstrated that
counseling and probation supervision did not curb his dangerous
propensities, and that is another factor not reflected in the risk
assessment instrument. The court’s upward departure was thus amply
supported by the record.




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
