State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 521558 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

GEORGE WHEELER,

Appellant.

________________________________

Calendar Date: October 19, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

__________

James A. Sacco, Binghamton, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (David M.

Petrush of counsel), for respondent.

__________

Garry, J.

Appeal from an order of the County Court of Broome County

(Smith, J.), entered March 12, 2015, which classified defendant

as a risk level three sex offender pursuant to the Sex Offender

Registration Act.

Defendant was convicted in 2012 of possessing an obscene

sexual performance by a child and was sentenced to a prison term

of 1a to 4 years. In anticipation of his release from prison,

the Board of Examiners of Sex Offenders prepared a risk

assessment instrument (hereinafter RAI) in accordance with the

Sex Offender Registration Act (see Correction Law art 6-C) that

presumptively classified defendant as a risk level two sex

offender (75 points). The Board and the People, however,

recommended an upward departure to a risk level three
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classification. Following a hearing, County Court adopted the

Board's RAI and further determined that an upward departure to a

risk level three classification was warranted. Defendant now

appeals.

We affirm. "An 'upward departure from the presumptive risk

level is justified when an aggravating factor, not adequately

taken into account by the risk assessment guidelines, is

established by clear and convincing evidence'" (People v Sabin,

139 AD3d 1282, 1282 [2016] [brackets omitted], lv denied ___ NY3d

___ [Oct. 25, 2016], quoting People v Auleta, 135 AD3d 1251, 1252

[2016], lv denied 27 NY3d 903 [2016]). "In rendering such a

determination, County Court may consider reliable hearsay

evidence such as the case summary, presentence investigation

report and the [RAI]" (People v Sabin, 139 AD3d at 1282 [internal

quotation marks and citation omitted]; see People v Becker, 120

AD3d 846, 847 [2014], lv denied 24 NY3d 908 [2014]). 

The reliable hearsay evidence, including the case summary

and presentence investigation report, demonstrates that defendant

admitted to being a pedophile and that he had been viewing child

pornography for two years. Defendant would seek out pornography

involving girls who are five years old and older; he was found

with approximately 30 compact discs containing child pornography

in his basement and over 27,000 pornographic images stored on his

computer and cell phone, including numerous images of children

involved in sex acts and a video of an adult having sexual

contact with a child. His cell phone was also used, apparently

surreptitiously, to film a video of a young girl sitting on a

bus. In light of the aggravating factors not taken into

consideration by the RAI – including the duration and degree of

defendant's child pornography habit and his obsession with young

girls – we find County Court's determination that an upward

departure was warranted is supported by clear and convincing

evidence (see People v Burke, 139 AD3d 1268, 1270 [2016]; People

v Labrake, 121 AD3d 1134, 1135-1136 [2014]). 

We reject defendant's contention that County Court did not

properly consider evidence that he was scored at a medium-low

risk of recidivism under a STATIC-99 risk evaluation instrument

in making the determination. This instrument was submitted and
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reviewed in the course of the hearing, and the court retained the

discretion to determine what weight it should be afforded (see

People v Ferrer, 69 AD3d 513, 514 [2010], lv denied 14 NY3d 709

[2010]). Considering the evidence warranting an upward departure

from the presumptive risk assessment, we do not find that County

Court erred in classifying defendant as a risk level three sex

offender, despite his test scores. Defendant's remaining claims

have been considered and found to be without merit.

Peters, P.J., Egan Jr., Rose and Mulvey, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court