Opinion
2014-01-15
PEOPLE of State of New York, respondent, v. Kyle R. FAVER, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel; Philip Scholz on the brief), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel; Philip Scholz on the brief), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the County Court, Suffolk County (Kahn, J.), dated January 28, 2013, as, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
After the defendant's convictions of two sex crimes in Florida, he relocated to New York. Following a hearing to determine the defendant's risk level pursuant to the Sex Offender Registration Act ( see Correction Law article 6–C [hereinafter SORA] ), the County Court granted the People's application for an upward departure from the defendant's presumptive risk level one designation.
“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 (SORA) 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] ).
Contrary to the defendant's contention, the County Court properly determined that the People provided clear and convincing evidence of aggravating factors not adequately taken into account by the SORA guidelines. While several of the defendant's prior offenses are not classified as “sex crimes” for purposes of scoring on the risk assessment instrument (hereinafter RAI), they did have a sexual component to them ( see People v. Mingo, 12 N.Y.3d 563, 570, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Freeman, 85 A.D.3d 1335, 1336, 925 N.Y.S.2d 254; People v. Twyman, 59 A.D.3d 415, 416, 872 N.Y.S.2d 540). Further, the RAI failed to account for the defendant's conviction in Florida, after his commission of the instant offenses, of failure to comply with sex offender reporting requirements of that State ( see People v. Porter, 74 A.D.3d 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). Upon determining the existence of these aggravating factors, the County Court providently exercised its discretion in granting the People's application for an upward departure ( see People v. Wyatt, 89 A.D.3d 112, 123, 931 N.Y.S.2d 85). SKELOS, J.P., LOTT, COHEN and HINDS–RADIX, JJ., concur.