Opinion
06-28-2017
PEOPLE of State of New York, respondent, v. Darrin ALLEN, appellant.
Seymour W. James, Jr., New York, NY (Paul Wiener of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Paul Wiener of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Mattei, J.), dated October 22, 2015, 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 request for an upward departure from the presumptive risk level two designation, to risk level three. The People demonstrated, by clear and convincing evidence, the existence of an aggravating factor that was not adequately taken into account by the Sex Offender Registration Act guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). The proof presented at the hearing established, inter alia, that the defendant was convicted in Virginia of failing to register as a sex offender, which justified the court's determination to grant the People's request for an upward departure (see People v. Boyd, 121 A.D.3d 658, 658–659, 993 N.Y.S.2d 184 ; People v. Faver, 113 A.D.3d 662, 663, 978 N.Y.S.2d 690 ; People v. Porter, 74 A.D.3d 767, 767–768, 901 N.Y.S.2d 534 ; People v. Turpeau, 68 A.D.3d 1083, 890 N.Y.S.2d 334 ; People v. Walker, 67 A.D.3d 760, 761, 888 N.Y.S.2d 195 ).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
MASTRO, J.P., RIVERA, ROMAN and SGROI, JJ., concur.