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