State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 520923 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK, 

Respondent, 

v MEMORANDUM AND ORDER

JOSEPH GUYETTE, 

Appellant.

________________________________

Calendar Date: May 31, 2016

Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Theresa Suozzi, Saratoga Springs, for appellant.

Karen Heggen, District Attorney, Ballston Spa (Gordon W.

Eddy of counsel), for respondent.

__________

Mulvey, J.

Appeal from an order of the County Court of Saratoga County

(Sypniewski, J.), entered January 27, 2015, which classified

defendant as a risk level II sex offender pursuant to the Sex

Offender Registration Act.

In satisfaction of a 74-count indictment, defendant pleaded

guilty to 10 counts each of promoting a sexual performance by a

child and possessing a sexual performance by a child and was

sentenced to concurrent prison terms of 1 to 3 years on each

count. Prior to his release from prison, the Board of Examiners

of Sex Offenders prepared a Risk Assessment Instrument

(hereinafter RAI) pursuant to the Sex Offender Registration Act

(see Correction Law art 6-C) and assessed defendant 20 points for

risk factor 5 (age of victim), presumptively classifying
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defendant as risk level I sex offender. However, the Board and

the People recommended an upward departure to a risk level II

classification. Following a hearing, County Court assessed 30

points for risk factor 3 (number of victims) and 20 points for

risk factor 7 (relationship with victim as a stranger). Although

defendant's presumptive classification remained in the risk level

I category, the court determined that an upward departure was

warranted and thereafter classified defendant as a risk level II

sex offender. Defendant now appeals.

Initially, to the extent that defendant contends that

County Court did not sufficiently set forth its findings and

conclusions of law, we note that despite the lack of a detailed

written order, the court "made oral findings and conclusions that

are clear, supported by the record and sufficiently detailed to

permit intelligent review" (People v Labrake, 121 AD3d 1134, 1135

[2014]). Next, with regard to County Court's assessment of an

additional 50 points on the RAI, we note that defendant is not

aggrieved as, even with a final score of 70 points, he remained

within the presumptive classification of a risk level I sex

offender. In any event, we find that the points for risk factors

3 and 7 were properly assessed as defendant possessed over 220

pornographic images of children (see People v Gillotti, 23 NY3d

23 NY3d 841, 845 [2014]), and the children in the images were

clearly strangers to defendant (see People v Johnson, 11 NY3d

416, 420-421 [2008]). 

Turning to the merits, we are unpersuaded by defendant's

contention that the record does not contain clear and convincing

evidence to support the existence of an aggravating factor that

was not adequately taken into account in the RAI. It is well

settled that "an upward departure from a presumptive risk

classification is justified when an aggravating factor exists

that is not otherwise adequately taken into account by the risk

assessment guidelines and the court finds that such factor is

supported by clear and convincing evidence" (People v Bower, 127

AD3d 1507, 1508 [2015], lv denied 26 NY3d 910 [2015]; see People

v Gillotti, 23 NY3d at 861-862). The reliable hearsay evidence

submitted by the People, including the case summary, presentence

investigation report and defendant's sworn statement to police,

established defendant's daily downloading and viewing of child
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pornography for over 11⁄2 years, and defendant admitted in his

sworn statement to deviant sexual arousal by masturbation while

viewing the images. Furthermore, the evidence reveals, among

other things, that defendant entered into online chats with

children during which he asked about their genitalia and that

they masturbate. In view of the foregoing, County Court

appropriately found that the RAI did not adequately take into

account the aggravating circumstances of defendant's conduct, and

we find no abuse of discretion in defendant's classification as a

risk level II sex offender (see People v Rowe, 136 AD3d 1125

[2016]; People v Bower, 127 AD3d at 1508; People v Labrake, 121

AD3d at 1135-1136; People v Gauthier, 100 AD3d 1223, 1225

[2012]).

Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court