PEOPLE v. GANDY (2006)

 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 rather than a level two risk is supported by clear and convincing evidence (see generally People v. Carswell, 8 A.D.3d 1073, 778 N.Y.S.2d 646, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 24, 818 N.E.2d 666;  People v. Hitt, 7 A.D.3d 813, 776 N.Y.S.2d 886, lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665).   If the risk of a repeat offense is high and there is a threat to the public safety, a level three designation is appropriate (see § 168-l [6][c];  People v. Heichel, 20 A.D.3d 934, 935, 798 N.Y.S.2d 633).   Here, there is clear and convincing evidence that, over the course of two years, defendant committed numerous violent sexual offenses against a girl who was 10 years old when the abuse started and that, while in prison, defendant was disciplined for attempting to mail his semen to an unknown recipient.

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

MEMORANDUM:

All concur, KEHOE, J., not participating.