Opinion
2019–00923
02-10-2021
PEOPLE of State of New York, respondent, v. Christopher ELGUT, appellant.
Del Atwell, East Hampton, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Elena Tomaro and Marion Tang of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Elena Tomaro and Marion Tang of counsel), for respondent.
REINALDO E. RIVERA, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated December 17, 2018, 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.
In 2017, the defendant was convicted, upon his plea of guilty, of sexual abuse in the first degree (two counts), among other related crimes. In anticipation of his release from prison, after a hearing to determine the defendant's risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the County Court granted the People's application for an upward departure and designated the defendant a level two sex offender.
Where the People seek an upward departure from the presumptive risk level, the court must determine whether the aggravating factors alleged to show a higher likelihood of the defendant's reoffense are, as a matter of law, of a kind or to a degree not adequately taken into account by the SORA: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines), and whether the People adduced sufficient evidence to prove by clear and convincing evidence the existence of those aggravating factors (see Correction Law § 168–n[3] ; People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). When the People have met this burden, the court must then "exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism" ( People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Here, the People established, by clear and convincing evidence, the existence of aggravating factors not adequately taken into account by the Guidelines, namely, that the defendant suffered from serious mental illness of longstanding and continuing duration which must be controlled by prescribed medication, that he had committed the subject sexual offense when he had failed to take prescribed medication as directed and had recently been released from a psychiatric hospital following the same failure in taking his medication, that he had a history of frequent noncompliance with taking his medication, that he had difficulty in finding an appropriate residential setting when not incarcerated, and that his behavior was unpredictable when he was not medicated or supervised (see People v. Richardson, 101 A.D.3d 837, 839, 957 N.Y.S.2d 158 ; People v. Bogert, 91 A.D.3d 925, 937 N.Y.S.2d 617 ; People v. Andrychuk, 38 A.D.3d 1242, 831 N.Y.S.2d 795 ). Further, the County Court providently exercised its discretion in weighing these aggravating factors and determining that the totality of the circumstances warranted an upward departure from the presumptive level one designation and designating the defendant a level two sex offender.
The defendant's remaining contention is without merit.
RIVERA, J.P., BARROS, CONNOLLY, BRATHWAITE NELSON and IANNACCI, JJ., concur.