People v. Sanderline — 142 A.D.3d 1061

Majority

p. 1061

The People of the State of New York, Respondent, v John E. Sanderline, Appellant.

[37 NYS3d 455]

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated February 25, 2015, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

An upward departure from the presumptive risk level is permitted only if the court determines “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” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines]; see People v Gillotti, 23 NY3d 841 , 861 [2014]; People v DeWoody, 127 AD3d 831 , 831-832 [2015]). Here, the County Court properly determined that the People

p. 1062

presented clear and convincing evidence of aggravating factors not adequately taken into account by the Guidelines (see People v Jackson, 139 AD3d 1031 [2016]; People v DeDona, 102 AD3d 58 , 69 [2012]). Upon making that determination, the court providently exercised its discretion in granting the People’s application for an upward departure (see People v Wyatt, 89 AD3d 112 , 123 [2011]). Accordingly, the defendant was properly designated a level two sex offender.

Leventhal, J.P., Roman, Sgroi and LaSalle, JJ., concur.

Cases cited

People v. Gillotti 23 NY3d 841 N.Y. 2014-06-10 at 861 p. 1061
People v. DeWoody 127 AD3d 831 N.Y. App. Div. 2015-04-08 at 831-832 p. 1061
People v. Jackson 139 AD3d 1031 N.Y. App. Div. 2016-05-25 p. 1062
People v. DeDona 102 AD3d 58 N.Y. App. Div. 2012-11-14 at 69 p. 1062
People v. Wyatt 89 AD3d 112 N.Y. App. Div. 2011-10-18 at 123 p. 1062