PEOPLE v. JAMES (2007)

Appeal by the defendant from an amended order of the County Court, Nassau County (Berkowitz, J.), dated June 15, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

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

The defendant, who was convicted following a jury trial of rape in the second degree, incest (two counts), rape in the third degree, and endangering the welfare of a child, contends that the County Court erred in upwardly departing from the presumptive risk level two recommendation made by the Board of Examiners of Sex Offenders.

Upon our independent review of the record, we find clear and convincing evidence of aggravating factors not taken into account by the Risk Assessment Instrument (see People v. Agard, 35 A.D.3d 568, 825 N.Y.S.2d 761;  People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807), which warranted an upward departure.   In particular, evidence derived from the pre-sentence report demonstrated that the defendant had a history of violent and abusive dealings with the underaged victim and her mother.

The defendant's remaining contentions either are unpreserved for appellate review, are without merit, or need not be addressed in view of the propriety of an upward departure (see People v. Myers, 306 A.D.2d 334, 760 N.Y.S.2d 681).