People v. Bower , 7 N.Y.S.3d 703 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 30, 2015 516526
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JASON BOWER,
Appellant.
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Calendar Date: March 23, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
__________
James P. Milstein, Public Defender, Albany (Christopher J.
Ritchey of counsel), for appellant.
P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.
__________
Devine, J.
Appeal from an order of the Supreme Court (Lamont, J.),
entered October 22, 2014 in Albany County, which classified
defendant as a risk level II sex offender pursuant to the Sex
Offender Registration Act.
Defendant was convicted in 2007 of various federal
offenses, including one pertaining to child pornography that
rendered him subject to the Sex Offender Registration Act (see 18
USC § 2252A [a] [2]; Correction Law §§ 168-a [2] [d]; 168-d).
After his release from prison, the Board of Examiners of Sex
Offenders prepared a risk assessment instrument that
presumptively classified defendant as a risk level I sex
offender. Both the Board and the People argued that an upward
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departure was warranted and, following a hearing, Supreme Court
agreed. Supreme Court accordingly classified defendant as a risk
level II sex offender. Defendant now appeals, arguing that an
upward departure was not warranted.
We disagree and affirm. "Under settled law, an upward
departure from a presumptive risk classification is justified
when an aggravating factor exists that is not otherwise
adequately taken into account by the risk assessment guidelines
and the court finds that such factor is supported by clear and
convincing evidence" (People v Walker, 105 AD3d 1154, 1155
[2013], lv denied 21 NY3d 857 [2013] [internal quotation marks
and citations omitted]; see Correction Law § 168-n [3]; People v
Gillotti, 23 NY3d 841, 861-862 [2014]). Supreme Court relied
upon facts contained in the case summary and federal presentence
investigation report, both of which indicated that defendant's
conviction arose from his sexually explicit online communications
with an underage boy in England. The two exchanged sexually
graphic images and, after the victim reached the age of consent
in England, defendant made plans to meet the victim for sexual
purposes. The plot was uncovered by the victim's mother,
however, and defendant was apprehended by law enforcement
officials at the airport prior to his departure. Given these
undisputed facts, Supreme Court appropriately found that the risk
assessment instrument did not adequately take into account the
nature of defendant's conduct, and we perceive no abuse of
discretion in its classification of defendant as a risk level II
sex offender (see People v DeDona, 102 AD3d 58, 69-70 [2012];
People v Gosek, 98 AD3d 1309, 1310 [2012]; People v Curthoys, 77
AD3d 1215, 1216 [2010]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court