TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F.
DUGUAY OF COUNSEL), FOR DEFENDANT-APPELLANT.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND
from an order of the Monroe County Court (Christopher S.
Ciaccio, J.), entered November 10, 2015. The order determined
that defendant is a level two risk pursuant to the Sex
Offender Registration Act.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
In 1994, defendant was convicted, upon a plea of guilty, of
sexual abuse in the first degree (Penal Law § 130.65
) and was sentenced to an indeterminate term of
incarceration. He was thereafter designated a level one sex
offender pursuant to the Sex Offender Registration Act
([SORA] Correction Law art 6-C). In 2013, defendant was
convicted of endangering the welfare of a child (Penal Law
§ 260.10 ) in full satisfaction of that charge and a
charge of public lewdness (§ 245.00). The allegations
supporting those charges were that the naked defendant stood
in his doorway masturbating in full view of and while looking
directly at a 10-year-old girl. Defendant was sentenced to a
term of probation and, thereafter, the People petitioned,
pursuant to Correction Law § 168-o (3), for an upward
modification of his risk assessment level. County Court
granted the petition, and we now affirm.
to Correction Law § 168-o (3), the People may file a
petition for an upward modification of a sex offender's
SORA risk level designation where the sex offender (a) has
been convicted of a new crime... and (b) the conduct
underlying the new crime... is of a nature that indicates an
increased risk of a repeat sex offense' "
(People v Williams, 128 A.D.3d 788, 789 [2d Dept
2015], lv denied 26 N.Y.3d 902');">26 N.Y.3d 902 ; see
People v Wroten, 286 A.D.2d 189, 194 [4th Dept 2001],
lv denied 97 N.Y.2d 610');">97 N.Y.2d 610 ). "The district
attorney shall bear the burden of proving the facts
supporting the requested modification, by clear and
convincing evidence" (Correction Law § 168-o ;
see Williams, 128 A.D.3d at 789).
preliminary matter, we agree with defendant that the court
cited to the wrong standard in its written decision, when it
wrote that the People had "sustained their burden of
presenting, by a preponderance of the evidence, facts
supporting an upward departure." We agree with the
People, however, that the inclusion of the phrase
"preponderance of evidence" was merely a clerical
error, inasmuch as the court correctly stated that the
appropriate standard was clear and convincing evidence both
at the hearing and in its initial summary of the applicable
law in its written decision. In any event, "remittal is
not required because the record is sufficient to enable us to
determine under the proper standard whether the court erred
in [granting the People's petition]" (People v
Loughlin, 145 A.D.3d 1426, 1427-1428 [4th Dept 2016],
lv denied 29 N.Y.3d 906');">29 N.Y.3d 906 ; see generally
People v Urbanski, 74 A.D.3d 1882, 1883 [4th Dept 2010],
lv denied 15 N.Y.3d 707');">15 N.Y.3d 707 ).
is no dispute that defendant was convicted of a new crime,
i.e., endangering the welfare of a child, which was based on
inappropriate, sexually motivated conduct directed at a
10-year-old girl. "Despite the fact that this conviction
did not qualify as a registerable sex offense (see
Correction Law § 168-a ), the nature of the conduct
underlying it is sufficient to establish, by clear and
convincing evidence (see Correction Law § 168-o
), that defendant is at an increased risk to
reoffend" (People v Greene, 83 A.D.3d 1304,
1304 [3d Dept 2011], lv denied17 N.Y.3d 706');">17 N.Y.3d 706
). We thus conclude that the People sustained their
burden of establishing by clear and ...