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People v. Cunningham

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


December 30, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JONATHAN A. CUNNINGHAM, APPELLANT.

Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered May 16, 2008. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 10, 2010

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 two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant's contention, the statements in the case summary constitute reliable hearsay upon which County Court properly relied pursuant to Correction Law § 168-n (3) (see People v Thompson, 66 AD3d 1455 [2009]; People v Ramos, 41 AD3d 1250 [2007], lv denied 9 NY3d 809 [2007]; People v Wragg, 41 AD3d 1273 [2007], lv denied 9 NY3d 809 [2007]). Those statements constitute clear and convincing evidence that an upward departure from the presumptive risk level was warranted based upon "an aggravating . . . factor of a kind, or to a degree, . . . otherwise not adequately taken into account by the [risk assessment] guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]).

Present---Scudder, P. J., Hurlbutt, Smith and Centra, JJ.

20091230

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