People v. Fuller

37 A.D.3d 689, 828 N.Y.S.2d 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2007
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Westchester County (Bellantoni, J.), entered April 18, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant is reclassified as a level two sex offender.

The County Court erred in upwardly departing from the defendant’s presumptive risk level two sex offender status and designating him a risk level three sex offender (see Correction Law § 168-a [1]). The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant such an upward departure (see People v Ruddy, 31 AD3d 517 [2006], lv denied 7 NY3d 714 [2006]; People v Guaman, 8 AD3d 545 [2004]).

The defendant’s remaining contentions are without merit or need not be reached in light of our determination. Mastro, J.E, Goldstein, Lifson and Garni, JJ., concur. [See 11 Misc 3d 1081(A), 2006 NY Slip Op 50647(U) (2006).]