SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1329
KA 12-00112
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KEEGAN ROBERTSON, DEFENDANT-APPELLANT.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.
BARRY PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
Appeal from an order of the Seneca County Court (W. Patrick
Falvey, A.J.), entered October 31, 2011. 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: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). We reject defendant’s
contention that County Court erred in assessing 30 points against him
under risk factor 3, for having three or more victims. “[I]t is well
settled that, in determining the number of victims for SORA purposes,
the hearing court is not limited to the crime of which defendant was
convicted” (People v Gardiner, 92 AD3d 1228, 1229, lv denied 19 NY3d
801). Here, the court properly considered “reliable hearsay
evidence,” including defendant’s statements to the police, in
determining the number of victims (§ 168-n [3]; see People v Christie,
94 AD3d 1263, 1263, lv denied 19 NY3d 808).
The court also properly denied defendant’s request for a downward
departure from his presumptive risk level based upon his young age at
the time of the underlying offenses. A departure from the presumptive
risk level is warranted where “there exists an aggravating or
mitigating factor of a kind, or to a degree, that is otherwise not
adequately taken into account by the [risk assessment] guidelines”
(Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary, at 4 [2006]; see People v Cummings, 81 AD3d 1261, 1262, lv
denied 16 NY3d 711). Here, the guidelines adequately addressed
defendant’s age when he committed his first sex crime, and the court
properly assessed 10 points under risk factor 8 because, at age 20 or
less, he committed a sex offense that resulted in an adjudication or a
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KA 12-00112
conviction of a sex crime.
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court