State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 19, 2016 520924 

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THE PEOPLE OF THE STATE OF 

NEW YORK, 

Respondent, 

v MEMORANDUM AND ORDER

ABRAHAM S. SABIN, 

Appellant.

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Calendar Date: April 19, 2016

Before: Peters, P.J., Garry, Rose, Clark and Aarons, JJ.

__________

Lisa A. Burgess, Indian Lake, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M.

Hollis of counsel), for respondent.

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Rose, J.

Appeal from an order of the County Court of Franklin County

(Main Jr., J.), entered February 19, 2015, which classified

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

Offender Registration Act.

Defendant pleaded guilty to sexual abuse in the first

degree stemming from his sexual contact with a seven-year-old

girl, and he was sentenced to a prison term of seven years

followed by 10 years of postrelease supervision. Prior to his

release from prison, the Board of Examiners of Sex Offenders

prepared a risk assessment instrument that presumptively

classified defendant as a risk level II sexually violent offender

under the Sex Offender Registration Act (see Correction Law art

6-C). However, the Board and the People recommended an upward
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departure to a risk level III. Following a hearing, County Court

determined that an upward departure was warranted and thereafter

classified defendant as a risk level III sexually violent

offender. Defendant now appeals. 

We affirm. An "[u]pward 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

Auleta, 135 AD3d 1251, 1252 [2016] [internal quotation marks and

citations omitted]). In rendering such a determination, County

Court "may consider reliable hearsay evidence such as the case

summary, presentence investigation report and risk assessment

instrument" (People v Nash, 114 AD3d 1008, 1008 [2014]; see

People v Becker, 120 AD3d 846, 847 [2014], lv denied 24 NY3d 908

[2014]). Where the nature of the conduct underlying the

conviction is not adequately accounted for in the risk assessment

instrument, it may form the basis for an upward modification of a

defendant's risk level (see People v Nash, 114 AD3d at 1008;

People v Greene, 83 AD3d 1304, 1304 [2011], lv denied 17 NY3d 706

[2011]). 

Here, information in the case summary and presentence

investigation report note defendant's emotional congruency with

children and, when questioned by the victim's mother about

reportedly strange behavior with children, he assured her that he

was simply more comfortable with them than with adults and that

he would never hurt a child. The information also reflected that

defendant bought the victim gifts on a daily basis and, even

after the mother asked him to stop, he surreptitiously continued

to do so in an attempt to groom the child. Further, the

information also established that defendant brazenly engaged in

sexual abuse of the victim while the mother was in close

proximity and that defendant, while displaying a knife, told the

victim that he would be in trouble if she told of his conduct. 

Given these circumstances, clear and convincing evidence

demonstrated aggravating factors regarding the nature of

defendant's conduct that were not adequately taken into

consideration by the risk assessment instrument, and County

Court's upward departure was warranted (see People v Rowe, 136

AD3d 1125, 1126 [2016]; People v O'Connell, 95 AD3d 1460, 1460-
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1461 [2012]; People v Wasley, 73 AD3d 1400, 1400-1401 [2010]). 

Peters, P.J., Garry, Clark and Aarons, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court