People v. Sanderline

142 A.D.3d 1061, 37 N.Y.S.3d 455

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated February 25, 2015, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

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

An upward departure from the presumptive risk level is permitted only if the court determines “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [Sex Offender Registration Act] guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines]; see People v Gillotti, 23 NY3d 841, 861 [2014]; People v DeWoody, 127 AD3d 831, 831-832 [2015]). Here, the County Court properly determined that the People presented clear and convincing evidence of aggravating factors not adequately taken into account by the Guidelines (see People v Jackson, 139 AD3d 1031 [2016]; People v DeDona, 102 AD3d 58, 69 [2012]). Upon making that determination, the court providently exercised its discretion in granting the People’s application for an upward departure (see People v Wyatt, 89 AD3d 112, 123 [2011]). Accordingly, the defendant was properly designated a level two sex offender.

Leventhal, J.P., Roman, Sgroi and LaSalle, JJ., concur.