People of State of New York, respondent, v. Michael Cognato, appellant. (2021)

Argued—May 3, 2021

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Gia Lynne Morris, J.), dated May 29, 2018, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

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

In establishing a defendant's risk level under the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168–n[3] ).  Specifically, 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] guidelines' ” (People v. Gillotti, 23 NY3d 841, 853 [internal quotation marks omitted], quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines] ).  Here, contrary to the defendant's contention, the People presented clear and convincing evidence that the defendant's communication by telephone and email with the 15–year–old victim, his former student, while he was out on bail awaiting trial for the underlying crime, in violation of an order of protection, constituted an aggravating factor not adequately taken into account by the Guidelines (see People v. Brown, 163 AD3d 727).  Under the circumstances, the court providently exercised its discretion in granting the People's application for an upward departure (see People v. Gillotti, 23 NY3d at 861).  Accordingly, the defendant was properly designated a level two sex offender.

LASALLE, P.J., HINDS–RADIX, CONNOLLY and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court