PEOPLE v. ABRAHAM (2007)

 Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.).   County Court's upward departure from the presumptive risk level in determining that defendant is a level three risk is supported by clear and convincing evidence (see generally People v. Seils, 28 A.D.3d 1158, 813 N.Y.S.2d 594, lv. denied 7 N.Y.3d 709, 822 N.Y.S.2d 483, 855 N.E.2d 799;  People v. Ventura, 24 A.D.3d 527, 807 N.Y.S.2d 609, lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477).  “A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors[,] ․ [the court determines that] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines' ” (People v. Cruz, 28 A.D.3d 819, 819, 811 N.Y.S.2d 816;  see Ventura, 24 A.D.3d 527, 807 N.Y.S.2d 609;  People v. Mount, 17 A.D.3d 714, 715, 792 N.Y.S.2d 697).   We agree with defendant that the second of the three factors upon which the court relied for the upward departure, i.e., the use of violence in the most recent offense, was already taken into account in the risk assessment instrument (see People v. Foley, 35 A.D.3d 1240, 826 N.Y.S.2d 868;  Mount, 17 A.D.3d at 715, 792 N.Y.S.2d 697).   Nevertheless, the remaining two factors upon which the court relied, i.e., defendant's repeated advances toward women and defendant's history of emotional problems, are sufficient aggravating factors that were not adequately taken into account in the risk assessment instrument (see Ventura, 24 A.D.3d 527, 807 N.Y.S.2d 609;  People v. Girup, 9 A.D.3d 913, 780 N.Y.S.2d 698).   The evidence established that defendant entered the homes of two former girlfriends and stole their clothing after they made negative statements about him.   In the most recent offense, defendant entered the home of a woman who had refused to talk to him and sexually abused her.   The evidence also established that defendant had a history of emotional problems that was causally related to a risk of reoffense (cf. People v. Zehner, 24 A.D.3d 826, 827, 804 N.Y.S.2d 852).   We therefore conclude that the court's upward departure from the presumptive risk level was proper.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: