People v. Valencia

2016 NY Slip Op 8057, 144 A.D.3d 1120, 41 N.Y.S.3d 432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 2016
• Docket: 2013-09062
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Donnelly, J.), dated September 20, 2013, 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.

Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive risk level two designation, to risk level three. The People demonstrated, by clear and convincing evidence, that there were aggravating factors not adequately taken into account by the guidelines and the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]), particularly the very young age of the victim and the more than four-year period of abuse (see People v Celled, 138 AD3d 708 [2016]; People v May, 77 AD3d 1388 [2010]; People v Mantilla, 70 AD3d 477, 478 [2010]; see also People v Montes, 134 AD3d 1083, 1083-1084 [2015]).

In light of our determination, we need not reach the defendant’s remaining contention.

Balkin, J.P., Hall, Sgroi and Bar-ros, JJ., concur.