People v. Witherspoon — 140 A.D.3d 1674

Majority

p. 1674

The People of the State of New York, Respondent, v David A. Witherspoon, Appellant.

[34 NYS3d 818]

Appeal from an order of the Livingston County Court (Robert B. Wiggins, J.), dated October 23, 2014. The order determined that defendant is a level three 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 determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court’s upward departure from his presumptive classification as a level two risk is not supported by clear and convincing evidence. We reject that contention. “ ‘The court’s discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors

p. 1675

to a degree not taken into account by the risk assessment instrument’ ” (People v Tidd, 128 AD3d 1537 , 1537 [2015], lv denied 25 NY3d 913 [2015]). We reject defendant’s further contention that the court improperly admitted a sworn deposition from each of the two victims inasmuch as those depositions constitute “reliable hearsay” that the court could properly consider in making an upward departure (Correction Law § 168-n [3]; see People v Pichcuskie, 111 AD3d 1344 , 1344 [2013], lv denied 22 NY3d 861 [2014]).

Present — Centra, J.P., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.

Cases cited

People v. Pichcuskie 111 AD3d 1344 N.Y. App. Div. 2013-11-08 at 1344 p. 1675

Statutes and regulations cited

Correction Law p. 1674, p. 1675