PEOPLE v. HARRIS (2008)

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.).   Although the total risk factor score on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level one risk, Supreme Court agreed with the Board's recommendation that an upward departure from defendant's presumptive risk level was warranted based upon aggravating factors not taken into account by the RAI. We affirm.   Contrary to defendant's contention, the court properly concluded that the risk factor for continuing course of sexual misconduct did not adequately take into account either the nature and duration of the sexual abuse or defendant's videotaping of at least one instance of that abuse (see generally People v. Leibach, 39 A.D.3d 1093, 1094, 832 N.Y.S.2d 825, lv. denied 9 N.Y.3d 806, 842 N.Y.S.2d 781, 874 N.E.2d 748;  People v. Allen, 24 A.D.3d 979, 980, 805 N.Y.S.2d 200), thus warranting the upward departure (see People v. Girup, 9 A.D.3d 913, 780 N.Y.S.2d 698).

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

MEMORANDUM: