Opinion
2012-07071.
10-01-2014
PEOPLE of State of New York, respondent, v. Joseph BOYD, appellant.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
PETER B. SKELOS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from an order of the County Court, Dutchess County (Greller, J.), dated June 21, 2012, 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.
“Utilization of the risk assessment instrument will generally ‘result in the proper classification in most cases so that departures will be the exception—not the rule’ ” (People v. Walker, 67 A.D.3d 760, 761, 888 N.Y.S.2d 195, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). However, “[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 [Sex Offender Registration Act] guidelines' ” (People v. Richardson, 101 A.D.3d 837, 838, 957 N.Y.S.2d 158, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v. LaPorte, 119 A.D.3d 758, 989 N.Y.S.2d 309 ; People v. Willette, 115 A.D.3d 920, 982 N.Y.S.2d 173 ; People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807 ).
Here, the County Court properly granted the People's motion for an upward departure of the defendant's risk level designation from a level two to a level three sex offender. 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. The proof presented at the hearing established, inter alia, that the defendant was convicted in New Jersey 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. 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, 1083, 890 N.Y.S.2d 334 ; People v. Walker, 67 A.D.3d 760, 761, 888 N.Y.S.2d 195 ; People v. Roberts, 54 A.D.3d 1106, 1107, 863 N.Y.S.2d 837 ).
The parties' remaining contentions either are without merit, or need not be reached in light of our determination.