People v. Celleri

138 A.D.3d 708, 27 N.Y.S.3d 888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2016
• Docket: 2015-05761
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated June 4, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

As correctly conceded by the defendant, the evidence submitted at the hearing included clear and convincing evidence that he had a sex crime conviction subsequent to the instant conviction. This subsequent conviction constituted an aggravating factor of a kind, or to a degree, that was otherwise not adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) Guidelines (see SORA: Risk Assessment Guidelines and Commentary at 14 [2006]; People v Scales, 134 AD3d 790, 792 [2015]; People v Amin, 128 AD3d 785, 786 [2015]). Moreover, the People proved, by clear and convincing evidence, that the circumstances surrounding that subsequent conviction, including, inter alia, the age of the victim and the defendant’s gross violation of familial trust, constituted additional aggravating factors not already taken into account in the risk assessment instrument (see People v Mantilla, 70 AD3d 477, 478 [2010]; see also People v Montes, 134 AD3d 1083 [2015]; People v Melzer, 89 AD3d 1000, 1001 [2011]).

Accordingly, the County Court properly granted the People’s application for an upward departure and designated the defendant a level three sex offender.

Mastro, J.P., Chambers, Roman and Barros, JJ., concur.