THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILLIAM MOORE DEFENDANT APPELLANT (2015)

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 three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   Based upon a total risk factor score of 85 points on the risk assessment instrument, defendant was presumptively classified a level two risk.   In a prior appeal, we reversed an order determining that defendant was a level three risk based on the automatic override for a prior felony conviction of a sex crime (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 3–4 [2006] ), and we vacated the risk level determination and remitted the matter to County Court for further proceedings in compliance with Correction Law § 168–n (3) (People v. Moore, 115 AD3d 1360).   Upon remittal, the court again determined that defendant is a level three risk.

Contrary to defendant's contention, “[t]he court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument” (People v. Sherard, 73 AD3d 537, 537, lv denied 15 NY3d 707).   The court properly relied upon factors that, “as a matter of law, ․ tend[ed] to establish a higher likelihood of reoffense or danger to the community” (People v. Wyatt, 89 AD3d 112, 123, lv denied 18 NY3d 803), including defendant's prior felony conviction of a sex crime, his difficulty controlling his impulses, and his victimization of young girls over an extended period of time (see People v. Vaillancourt, 112 AD3d 1375, 1376, lv. denied 22 NY3d 864).

Frances E. Cafarell

Clerk of the Court