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

510
KA 14-02143
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DAVID A. WITHERSPOON, DEFENDANT-APPELLANT.


JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO, FOR
DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Livingston County Court (Robert B.
Wiggins, J.), dated October 23, 2014. 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 two
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 Tidd, 128 AD3d 1537, 1537, lv
denied 25 NY3d 913). We reject defendant’s further contention that
the court improperly admitted a sworn deposition from each of the two
victims inasmuch as those depositions constitute “reliable hearsay”
that the court could properly consider in making an upward departure
(§ 168-n [3]; see People v Pichcuskie, 111 AD3d 1344, 1344, lv denied
22 NY3d 861).




Entered:    June 10, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
