Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Matthew SYMONDS, Defendant–Appellant.
Charles J. Greenberg, Amherst, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Charles J. Greenberg, Amherst, for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that County Court erred in granting an upward departure from his presumptive classification as a level one risk. We reject that contention. It is well settled that a court may grant an upward departure from a sex offender's presumptive risk level when the People establish, by clear and convincing evidence (see § 168–n[3]; People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), the existence of "an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [risk assessment] guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v. Shepard, 103 A.D.3d 1224, 1224, 958 N.Y.S.2d 858, lv. denied 21 N.Y.3d 856, 2013 WL 2350362 ; People v. Wheeler, 59 A.D.3d 1007, 1008, 872 N.Y.S.2d 360, lv. denied 12 N.Y.3d 711, 2009 WL 1309378 ). Here, there is clear and convincing evidence of "defendant's exploitation of his relationship of trust with the victim[ ]" over a period of more than a year (People v. Botindari, 107 A.D.3d 1607, 1608, 966 N.Y.S.2d 733 ), which constituted an aggravating factor of a kind or to a degree not otherwise taken into account by the risk assessment guidelines (see People v. Mantilla, 70 A.D.3d 477, 478, 894 N.Y.S.2d 418, lv. denied 15 N.Y.3d 706, 2010 WL 3546757 ; People v. Hill, 50 A.D.3d 990, 991, 857 N.Y.S.2d 188, lv. denied 11 N.Y.3d 701, 864 N.Y.S.2d 389, 894 N.E.2d 653 ; People v. Ferrer, 35 A.D.3d 297, 297, 826 N.Y.S.2d 70, lv. denied 8 N.Y.3d 807, 833 N.Y.S.2d 427, 865 N.E.2d 844 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.