Opinion
68 KA 16–00156
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Samuel PEREZ, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court erred in granting an upward departure from his presumptive classification as a level one risk to a level two risk. We reject that contention.
It is well settled that when the People establish, by clear and convincing evidence (see Correction Law § 168–n [3 ] ), the existence of aggravating factors that are, "as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines," a court "must exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure" from a sex offender's presumptive risk level ( People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; see People v. Sincerbeaux, 27 N.Y.3d 683, 689–690, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ). Here, the People established by clear and convincing evidence that, concurrent with his conviction in Florida of the felony sex offense underlying the present registration, defendant was convicted of two counts of attempted false imprisonment arising from an incident occurring several months after he was arrested for the underlying sex offense in which he attempted to lure two female children under the age of 13 into his vehicle. The court properly determined that the concurrent conviction is an aggravating factor not taken into account by the risk assessment guidelines that provides a basis for an upward departure inasmuch as it is "indicative that the offender poses an increased risk to public safety" (Risk Assessment Guidelines and Commentary at 14; see People v. Colsrud, 155 A.D.3d 1601, 1602, 63 N.Y.S.3d 771 [4th Dept. 2017] ; People v. Neuer, 86 A.D.3d 926, 927, 926 N.Y.S.2d 793 [4th Dept. 2011], lv denied 17 N.Y.3d 716, 2011 WL 5573990 [2011] ). Contrary to defendant's further contention, his two more recent convictions based on his failure to register as a sex offender are "not adequately taken into consideration by the risk assessment guidelines and [were] properly considered as [further] justification for the upward departure" ( People v. Roberts, 54 A.D.3d 1106, 1107, 863 N.Y.S.2d 837 [3d Dept. 2008], lv denied 11 N.Y.3d 713, 873 N.Y.S.2d 268, 901 N.E.2d 762 [2008] ; see People v. Allen, 151 A.D.3d 1087, 1088, 54 N.Y.S.3d 595 [2d Dept. 2017], lv denied 30 N.Y.3d 903, 2017 WL 4697249 [2017] ; People v. Brown, 149 A.D.3d 411, 411, 50 N.Y.S.3d 376 [1st Dept. 2017], lv. denied 29 N.Y.3d 914, 2017 WL 2802281 [2017] ; People v. Staples, 37 A.D.3d 1099, 1099, 829 N.Y.S.2d 337 [4th Dept. 2007], lv denied 8 N.Y.3d 813, 836 N.Y.S.2d 553, 868 N.E.2d 236 [2007] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.