People v. Gandy

Dec 22, 2006
Versions:35 A.D.3d 1163
825 N.Y.S.2d 889

The People of the State of New York, Respondent, v James F. Gandy, Appellant. [825 NYS2d 889]—Appeal from an order of the Erie County Court (Timothy J. Drury, J.), entered March 9, 2005. 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 be and the same hereby is affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). County Court‘s upward departure from the presumptive risk level in determining that defendant is a level three risk rather than a level two risk is supported by clear and convincing evidence (see generally People v Carswell, 8 AD3d 1073 [2004], lv denied 3 NY3d 607 [2004]; People v Hitt, 7 AD3d 813 [2004], lv denied 3 NY3d 606 [2004]). If the risk of a repeat offense is high and there is a threat to the public safety, a level three designation is appropriate (see Correction Law § 168-l [6] [c]; People v Heichel, 20 AD3d 934, 935 [2005]). Here, there is clear and convincing evidence that, over the course of two years, defendant committed numerous violent sexual offenses against a girl who was 10 years old when the abuse started and that, while in prison, defendant was disciplined for attempting to mail his semen to an unknown recipient.

All concur, Kehoe, J., not participating. Present—Scudder, J.P., Kehoe, Gorski, Smith and Pine, JJ.