People v. Sanderline

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 2016
• Docket: 2015-02746
• Status: Published

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.