People v. Adam — 126 A.D.3d 1169

Majority

p. 1169

The People of the State of New York, Respondent, v Michael Adam, Appellant.

[5 NYS3d 592]

Appeal from an order of the County Court of Albany County (Herrick, J.), entered May 2, 2014, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Over a nearly two-year span beginning in 2007, defendant engaged in sexually explicit online communications with two individuals that he believed to be a 13-year-old girl and a mother seeking to arrange a sexual partner for her 13-year-old daughter. Both individuals were in fact undercover FBI agents. Thereafter, defendant pleaded guilty to two counts of attempted disseminating indecent material to minors in the first degree,

p. 1170

and was sentenced to a prison term of four years, with 10 years of postrelease supervision. Prior to his release, the Board of Examiners of Sex Offenders completed a risk assessment instrument (hereinafter RAI) pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), which resulted in a presumptive classification of risk level one, and recommended an upward departure to risk level two. At the SORA hearing, County Court rejected additional risk factors proposed by the People, and determined defendant’s presumptive classification to be risk level one. The People also argued for an upward departure. Citing specific matters revealed in the record relative to the duration and manner of defendant’s contact with the potential victims, his efforts to obtain personal information from them, his discussions about traveling to meet them in person, and the graphic descriptions of sexual acts he hoped to engage in, the court determined that an upward departure to risk level two was warranted. Defendant appeals.

An upward departure from a presumptive risk level classification may be ordered where there is clear and convincing evidence of an aggravating factor not otherwise taken into account in the RAI (see People v Gillotti, 23 NY3d 841 , 861 [2014]; People v Labrake, 121 AD3d 1134 , 1135 [2014]; People v Thornton, 34 AD3d 1026 , 1026-1027 [2006], lv denied 8 NY3d 806 [2007]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4-5 [2006]). “In making its determination, the 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] [citations omitted]; see People v Becker, 120 AD3d 846 , 847 [2014], lv denied 24 NY3d 908 [2014]). Here, the People presented chat logs showing that, over the course of nearly two years of interactions with the undercover agents, defendant discussed plans to travel to the potential victims’ home city to meet with them and gave explicit descriptions of sexual acts he sought to engage in. Defendant suggested specific dates that he would be available for the encounters, and discussed hotels where he could stay. A forensic examination of his computer revealed that he had researched nearby hotels. Additionally, after breaking off contact with the potential victims, defendant subsequently resumed contact after a period of several months of inactivity. Under these circumstances, we agree that the People proffered clear and convincing evidence of aggravating factors not otherwise taken into account by the RAI, and we find no abuse of discretion in County Court’s determination that an upward departure was

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warranted (see People v DeDona, 102 AD3d 58 , 69-70 [2012]; People v Blackman, 78 AD3d 803 , 804 [2010], lv denied 16 NY3d 707 [2011]; see generally People v Kwiatkowski, 24 AD3d 878 , 879 [2005]).

Finally, we find no merit in defendant’s argument premised upon judicial estoppel, as the People neither argued for nor prevailed upon a contrary position in a prior proceeding (see Saratoga County Water Auth. v Gibeault, 103 AD3d 1017 , 1020 [2013]; compare Maas v Cornell Univ., 253 AD2d 1 , 5 [1999], affd 94 NY2d 87 [1999]).

Lahtinen, J.P., Rose and Devine, JJ., concur.

Ordered that the order is affirmed, without costs.

Cases cited

People v. Gillotti 23 NY3d 841 N.Y. 2014-06-10 at 861 p. 1170
People v. Thornton 34 AD3d 1026 N.Y. App. Div. 2006-11-16 at 1026-1027 p. 1170
People v. Nash 114 AD3d 1008 N.Y. App. Div. 2014-02-13 at 1008 p. 1170
People v. Becker 120 AD3d 846 N.Y. App. Div. 2014-08-07 at 847 p. 1170
People v. DeDona 102 AD3d 58 N.Y. App. Div. 2012-11-14 at 69-70 p. 1171
People v. Blackman 78 AD3d 803 N.Y. App. Div. 2010-11-09 at 804 p. 1171
People v. Kwiatkowski 24 AD3d 878 N.Y. App. Div. 2005-12-08 at 879 p. 1171
Saratoga County Water Authority v. Gibeault 103 AD3d 1017 N.Y. App. Div. 2013-02-21 at 1020 p. 1171
Maas v. Cornell University 253 AD2d 1 N.Y. App. Div. 1999-01-07 at 5 p. 1171
Maas v. Cornell University 94 NY2d 87 N.Y. 1999-11-23 p. 1171