PEOPLE v. HAVLEN (2018)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in granting an upward departure from his presumptive classification as a level one risk to a level two risk.  We reject that contention.

It is well settled that, when the People establish, by clear and convincing evidence (see Correction Law § 168–n [3] ), the existence of aggravating factors that are, “as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines,” a court “must exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure” from a sex offender's presumptive risk level (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014];  see People v. Sincerbeaux, 27 N.Y.3d 683, 689–690, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016];  Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] ).  Here, the People established by clear and convincing evidence that defendant not only used the internet to engage with an undercover police officer posing as a 15–year–old boy and communicate to him that he wanted to engage in sexual activity with him, but also “ ‘exhibited a willingness to act on his compulsions’ ” by arranging to meet with the intended victim and traveling from his home to the arranged meeting site (People v. Blackman, 78 A.D.3d 803, 804, 912 N.Y.S.2d 63 [2d Dept. 2010], lv denied 16 N.Y.3d 707, 2011 WL 1045127 [2011];  see People v. DeDona, 102 A.D.3d 58, 68–69, 954 N.Y.S.2d 541 [2d Dept. 2012];  People v. Agarwal, 96 A.D.3d 1450, 1451, 945 N.Y.S.2d 906 [4th Dept. 2012] ).  The People further established that defendant sought photographs from the intended victim and admitted that he hoped those photographs would contain child pornography, and that defendant enticed the intended victim to meet with the promise of illicit drugs.  Together, these are “aggravating ․ circumstances ․ of a kind or to a degree not adequately taken into account by the guidelines” (Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).