PEOPLE v. AUGER (2018)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated May 15, 2017, 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.

Contrary to the defendant's contention, the County Court did not improvidently exercise its discretion in granting the People's application for an upward departure from the presumptive risk level two designation, to risk level three.  The People demonstrated by clear and convincing evidence that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act guidelines (see Correction Law § 168–l[5];  Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4).  In particular, in addition to the fact that the defendant previously was diagnosed as a pedophile, the People presented clear and convincing evidence that the defendant had a history of domestic violence against the victim's mother and a subsequent paramour, and that he had threatened the victim that he would kill her and her mother if she disclosed the abuse (see People v. Winfield, 122 A.D.3d 488, 489, 995 N.Y.S.2d 76;  People v. Jones, 114 A.D.3d 550, 551, 980 N.Y.S.2d 754;  People v. Frosch, 69 A.D.3d 699, 699–700, 893 N.Y.S.2d 226;  People v. James, 45 A.D.3d 555, 556, 845 N.Y.S.2d 396).  The People also presented clear and convincing evidence that the defendant had given the victim alcohol prior to some of the abuse, and that he had engaged in sexual misconduct with other children than the one whose victimization led to the defendant's convictions (see People v. Ziliox, 145 A.D.3d 925, 926, 44 N.Y.S.3d 132;  People v. DeWoody, 127 A.D.3d 831, 832, 6 N.Y.S.3d 290;  People v. DeJesus, 117 A.D.3d 1017, 1018, 986 N.Y.S.2d 244).  The court providently exercised its discretion in concluding that the totality of the circumstances warranted a departure to avoid an under-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930).

MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.