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People of State v. Mcdonnell

Supreme Court, Appellate Division, Second Department, New York.
Nov 9, 2011
89 A.D.3d 815 (N.Y. App. Div. 2011)

Opinion

2011-11-9

PEOPLE of State of New York, respondent,v.Joseph S. McDONNELL, Jr., appellant.


Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.

Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.), dated March 4, 2010, 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.

In this proceeding under the Sex Offender Registration Act ( see Correction Law article 6–C), the Board of Examiners of Sex Offenders (hereinafter the Board) prepared a risk assessment instrument (hereinafter the RAI) assessing points under various risk factors for a total score within risk level two. The Board's point assessment was supported by clear and convincing evidence of the applicable risk factors, thus rendering a presumptive risk level two designation ( see Correction Law § 168–d[3]; People v. Pettigrew, 14 N.Y.3d 406, 408–409, 901 N.Y.S.2d 569, 927 N.E.2d 1053). The defendant was properly designated a “predicate sex offender” subject to lifetime registration based upon his previous convictions of sex offenses (Correction Law § 168–a [2], [7][c]; § 168–h[2] ).

The defendant contends that the County Court erred in granting the People's application, upon the recommendation of the Board, for an upward departure to risk level three. A court may exercise its discretion and depart upward from the presumptive risk level where “it concludes that there exists an aggravating ... factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.] ). There must be clear and convincing evidence of the existence of the aggravating factor to warrant the court's exercise of discretion ( see Correction Law § 168–n[3]; People v. Wyatt, ––– A.D.3d ––––, 931 N.Y.S.2d 85; People v. Walker, 67 A.D.3d 760, 761, 888 N.Y.S.2d 195). Contrary to the defendant's contention, the People demonstrated by clear and convincing evidence the existence of an aggravating factor that was not adequately taken into account by the guidelines ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [2006 ed.] ) and, on the record presented, the Supreme Court providently granted the People's application for an upward departure ( see People v. Walker, 67 A.D.3d at 761, 888 N.Y.S.2d 195; People v. Hill, 50 A.D.3d 990, 857 N.Y.S.2d 188; People v. Agard, 35 A.D.3d 568, 825 N.Y.S.2d 761; People v. Hines, 24 A.D.3d 524, 807 N.Y.S.2d 608).

The defendant's remaining contention is without merit.

ANGIOLILLO, J.P., BALKIN, DICKERSON and COHEN, JJ., concur.


Summaries of

People of State v. Mcdonnell

Supreme Court, Appellate Division, Second Department, New York.
Nov 9, 2011
89 A.D.3d 815 (N.Y. App. Div. 2011)
Case details for

People of State v. Mcdonnell

Case Details

Full title:PEOPLE of State of New York, respondent,v.Joseph S. McDONNELL, Jr.…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Nov 9, 2011

Citations

89 A.D.3d 815 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 8131
932 N.Y.S.2d 352

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