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

610
KA 13-01849
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ALAN D. TIDD, SR., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), entered September 13, 2013. 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 one
risk is not supported by clear and convincing evidence. We reject
that contention. “The court’s discretionary upward departure [to a
level three risk] was based on clear and convincing evidence of
aggravating factors to a degree not taken into account by the risk
assessment instrument” (People v Sherard, 73 AD3d 537, 537, lv denied
15 NY3d 707; see People v Howe, 49 AD3d 1302, 1302). Statements in a
presentence report and case summary constitute “reliable hearsay” upon
which a court may properly rely in making an upward departure (§ 168-n
[3]; see People v Mingo, 12 NY3d 563, 572-573) and, here, the court
premised its upward departure on information contained in those
documents, including evidence of the number of victims whom defendant
sexually abused, the lengthy period over which defendant committed
that sexual abuse, defendant’s lack of “insight into his offending,”
and the risk of recidivism. Finally, we reject defendant’s further
contention that he was deprived of effective assistance of counsel
(see People v Russell, 115 AD3d 1236, 1236).


Entered:    May 8, 2015                            Frances E. Cafarell
                                                   Clerk of the Court
