People v. Villalona

2017 NY Slip Op 4870, 151 A.D.3d 893, 53 N.Y.S.3d 836

Opinion

Appeal by the defendant from an order of the Supreme Court, Westchester County (Cacace, J.), entered July 7, 2016, 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.

Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in granting the People’s application for an upward departure from the presumptive risk level one designation to risk level two. The People demonstrated by clear and convincing evidence that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act guidelines (see Correction Law § 168-1 [5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Furthermore, it cannot be said that the court improvidently exercised its discretion in concluding that the totality of the circumstances warranted a departure to avoid an under-assessment of the defendant’s dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Johnson, 11 NY3d 416, 421 [2008]).

Mastro, J.P., Dillon, Roman and Brathwaite Nelson, JJ., concur.