                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521731
________________________________

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

DANIEL DAVIS,
                    Appellant.
________________________________


Calendar Date:   March 22, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


     John M. Hillman, Valatie, for appellant.

      Michael Cozzolino, Special Prosecutor, Claverack, for
respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order of the County Court of Columbia County
(Koweek, J.), entered July 22, 2015, which classified defendant
as a risk level III sex offender pursuant to the Sex Offender
Registration Act.

      In 2013, defendant pleaded guilty to attempted sexual abuse
in the first degree, a felony, stemming from his sexual contact
at age 60 with a 10-year-old child, and was sentenced to one year
in jail. After defendant's release from jail, the People
submitted a risk assessment instrument (hereinafter RAI) that
presumptively classified him as a risk level I sex offender, in
accordance with the Sex Offender Registration Act (see Correction
Law art 6-C [hereinafter SORA]). The People requested a risk
level III assessment as an upward departure, as recommended in
                              -2-                521731

the case summary, based upon defendant's 30-year criminal
history. After a hearing, County Court agreed and classified
defendant as a risk level III sex offender and a predicate sex
offender (see Correction Law § 168-a [7] [c]). Defendant
appeals.1

      An upward departure from a presumptive risk level
classification may be ordered where the People adduce clear and
convincing evidence demonstrating that an aggravating factor
exists that was not otherwise adequately taken into account by
the offender's score under the risk assessment guidelines (see
People v Gillotti, 23 NY3d 841, 861 [2014]). If the People do
so, the SORA court makes a discretionary determination whether
the overall circumstances warrant a departure to prevent an
underassessment of the offender's risk of sexual recidivism and
dangerousness (see id.; People v Labrake, 121 AD3d 1134, 1135
[2014]). Here, the RAI assessed a total of 60 points against
defendant – 30 points under risk factor 5 due to the victim being
age 10 or less and 30 points for criminal history under risk
factor 9 for his "[p]rior violent felony or misdemeanor sex crime
or endangering welfare of a child." Defendant does not challenge
the assessment of points under the RAI but, rather, argues that
the upward departure was not supported by facts that were not
already taken into account in scoring the RAI.2 We disagree.

      To that end, defendant's criminal history included his 1981
conviction for endangering the welfare of a child, which provided


    1
        Previously, this Court dismissed defendant's appeal from
the SORA classification because County Court's order had not been
properly entered (130 AD3d 1131 [2015]). The record reflects
that the order has now been properly entered (see CPLR 2220 [a]).
    2
        To the extent that the People now argue that defendant
should have been assessed 15 points under risk factor 14 because
he was released without supervision, making him a presumptive
risk level II sex offender, this argument was not raised at the
hearing or in the case summary and, thus, it is not preserved for
this Court's review (see People v Charache, 9 NY3d 829, 830
[2007]).
                              -3-                521731

a basis for the assessment of 30 points under risk factor 9.
However, the presentence report (hereinafter PSR) reflects a
criminal history of additional sexually-related misdemeanor
convictions, including public lewdness in 1981 and endangering
the welfare of a child and sexual abuse in the third degree
(based upon lack of consent) in 1998.3 Under the SORA
guidelines, endangering the welfare of a child is considered a
sex crime "because it generally involves sexual misconduct,
especially when it is part of a plea bargained disposition" (Sex
Offender Registration Act: Risk Assessment Guidelines and
Commentary, at 14 [2006]). Defendant did not dispute the
characterization by the Probation Department and the People that
his misdemeanor crimes had a sexual component (see People v
Freeman, 85 AD3d 1335, 1336 [2011]; People v Brown, 45 AD3d 1123,
1124 [2007], lv denied 10 NY3d 703 [2008]). We find that County
Court properly relied upon the uncontested PSR, RAI and case
summary, which constitute reliable hearsay regarding defendant's
past history of misconduct and satisfied the People's burden (see
Correction Law § 168-n [3]; People v Mingo, 12 NY3d 563, 573
[2009]; People v Adam, 126 AD3d 1169, 1170 [2015], lv denied 25
NY3d 911 [2015]; People v Muirhead, 110 AD3d 1386, 1387, lv
denied 23 NY3d 906 [2014]; People v Curthoys, 77 AD3d 1215, 1216
[2010]). Under these circumstances, the court's determination
that the RAI score did not adequately reflect defendant's
protracted and escalating criminal history and high risk of
reoffending, and that an upward departure to a risk level III
determination was warranted, are supported by the requisite clear
and convincing evidence (see People v Muirhead, 110 AD3d at 1387;
People v Fiol, 49 AD3d 834, 834-835 [2008], lv denied 10 NY3d 713


    3
        The PSR also lists under defendant's legal history a 1984
arrest for sexual abuse in the first degree, a felony, for which
he served three years of probation, but it does not reflect the
disposition for that charge. The Probation Department
characterized this as a "previous conviction for a felony," which
would have permitted a presumptive override to a risk level III
designation (see Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 3-4, 19 [2006]). This matter was
not addressed in the case summary or by the parties or County
Court at the SORA hearing.
                              -4-                  521731

[2008]; People v Thornton, 34 AD3d 1026, 1027 [2006], lv denied 8
NY3d 806 [2007]; see also People v DeJesus, 117 AD3d 1017, 1018
[2014], lv denied 24 NY3d 902 [2014]; People v Newman, 71 AD3d
488, 488 [2010]).

     McCarthy, Garry, Rose and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
