PEOPLE v. ROBINSON (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Dutchess County (Jessica Z. Segal, J.), dated April 20, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted, upon a jury verdict, of one count of sodomy in the first degree, two counts of sexual abuse in the first degree, and one count of endangering the welfare of a child.  Following a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the County Court assessed the defendant 95 points on the risk assessment instrument, rendering him a presumptive level two sex offender.  The court granted the People's application for an upward departure and designated the defendant a level three sex offender.  The defendant appeals.

The People proved, by clear and convincing evidence, that an aggravating factor of a kind and to a degree not adequately taken into account by the Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary (2006) existed in this case (see Correction Law § 168–n[3];  People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  Here, the defendant admitted to an evaluating psychiatrist and to an evaluating psychologist that he had engaged in a course of sexually predatory conduct for 20 years prior to committing the instant offenses, which had not been taken into account on the risk assessment instrument (see People v. Gould, 239 A.D.3d 775, 776, 236 N.Y.S.3d 674;  People v. Jenkins, 34 A.D.3d 352, 824 N.Y.S.2d 281;  People v. Seils, 28 A.D.3d 1158, 813 N.Y.S.2d 594).  Further, the County Court providently exercised its discretion in determining that the totality of the circumstances warranted an upward departure to avoid an underassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

In light of our determination, we need not reach the defendant's remaining contention (see People v. Walker, 208 A.D.3d 1190, 1192, 174 N.Y.S.3d 127).

BRATHWAITE NELSON, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.