Opinion
No. KA 07-01400.
April 25, 2008.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered May 23, 2007. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR RESPONDENT.
Present: Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Although the total risk factor score on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level one risk, Supreme Court agreed with the Board's recommendation that an upward departure from defendant's presumptive risk level was warranted based upon aggravating factors not taken into account by the RAI. We affirm. Contrary to defendant's contention, the court properly concluded that the risk factor for continuing course of sexual misconduct did not adequately take into account either the nature and duration of the sexual abuse or defendant's videotaping of at least one instance of that abuse ( see generally People v Leibach, 39 AD3d 1093, 1094, lv denied 9 NY3d 806; People v Allen, 24 AD3d 979, 980), thus warranting the upward departure ( see People v Girup, 9 AD3d 913).