PEOPLE v. DAVIES (2026)

MEMORANDUM AND ORDER

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.).

We conclude that Supreme Court did not abuse its discretion in granting the People's request for an upward departure (see generally People v. DeCapua, 179 A.D.3d 1460, 1461, 119 N.Y.S.3d 323 [4th Dept. 2020], lv denied 35 N.Y.3d 906, 2020 WL 3096653 [2020]). It is well settled that a court may grant an upward departure from a sex offender's presumptive risk level when the People establish, by clear and convincing evidence (see Correction Law § 168-n [3]; People v. Gillotti, 23 N.Y.3d 841, 861-862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]), the existence of “an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [risk assessment] guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v. Morin, 232 A.D.3d 1241, 1241, 222 N.Y.S.3d 838 [4th Dept. 2024], lv denied 43 N.Y.3d 903, 2025 WL 1129256 [2025]; People v. Vaillancourt, 112 A.D.3d 1375, 1376, 978 N.Y.S.2d 517 [4th Dept. 2013], lv denied 22 N.Y.3d 864, 2014 WL 1281989 [2014]). Here, the People met their burden of establishing by clear and convincing evidence the existence of aggravating factors not adequately accounted for in the risk assessment instrument, including defendant's pattern of procuring sexually explicit images from children by threats and extortion. Although defendant's out-of-state conviction was for sexually offending against only one victim, a 12-year-old boy, the court properly considered the case summary, which detailed multiple uncharged, predatory online actions against other children (see People v. Mingo, 12 N.Y.3d 563, 572-573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]; People v. Craig, 45 A.D.3d 1365, 1365-1366, 845 N.Y.S.2d 594 [4th Dept. 2007], lv denied 10 N.Y.3d 702, 853 N.Y.S.2d 543, 883 N.E.2d 370 [2008]; People v. Lewis, 45 A.D.3d 1381, 1381, 845 N.Y.S.2d 585 [4th Dept. 2007], lv denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008]).

We further reject defendant's contention that an upward departure was precluded by the fact that he received a low-risk score on an alternate risk assessment instrument, the Stable-2007, which conflicted with the high-risk assessment from the Static-99 (see People v. Pagan, 240 A.D.3d 1447, 1448-1449, 235 N.Y.S.3d 855 [4th Dept. 2025]; People v. Rolon, 210 A.D.3d 708, 708-709, 178 N.Y.S.3d 98 [2d Dept. 2022], lv denied 39 N.Y.3d 907, 2023 WL 1827810 [2023]; People v. Curry, 158 A.D.3d 52, 60, 68 N.Y.S.3d 483 [2d Dept. 2107], lv denied 31 N.Y.3d 905, 2018 WL 2012991 [2018]).

We have reviewed defendant's remaining contentions and conclude that they lack merit.