PEOPLE v. AMORIN (2018)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Westchester County (Susan Cacace, J.), entered June 2, 2011.  The order, after a hearing, designated the defendant a level three sex offender pursuant to Correction Law article 6–C.

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

The defendant pleaded guilty to rape in the first degree, assault in the second degree, and unlawful imprisonment in the first degree.  Following a hearing pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C;  hereinafter SORA), the County Court granted the People's application for an upward departure from the presumptive risk level two designation, and designated the defendant a level three sex offender.  On appeal, the defendant contends that the court should have denied the People's request for an upward departure.

“An upward departure from the presumptive risk level is permitted only if the court determines, upon clear and convincing evidence, ‘that there exists an aggravating ․ factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] [G]uidelines’ ” (People v. Diaz, 151 A.D.3d 891, 891, 56 N.Y.S.3d 542, quoting SORA:  Risk Assessment Guidelines and Commentary at 4 [2006];  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Ziliox, 145 A.D.3d 925, 44 N.Y.S.3d 132).  Here, the People presented clear and convincing evidence of aggravating factors not adequately taken into account by the SORA Guidelines, including, inter alia, the defendant's subsequent criminal conduct following the underlying sex offense (see People v. Palmer, 68 A.D.3d 1364, 1366, 892 N.Y.S.2d 232), and his history of violence with the complainant (see People v. Shim, 139 A.D.3d 68, 77, 28 N.Y.S.3d 87;  People v. James, 45 A.D.3d 555, 556, 845 N.Y.S.2d 396;  People v. Mudd, 43 A.D.3d 1128, 1129, 843 N.Y.S.2d 135).  Accordingly, we agree with the County Court's determination to grant the People's application for an upward departure from the presumptive risk level and to designate the defendant a level three sex offender.

MASTRO, J.P., ROMAN, BARROS and IANNACCI, JJ., concur.