PEOPLE v. ARRUNATEGUI (2018)

DECISION & ORDER

Appeal by the defendant from an amended order of the Supreme Court, Westchester County (Susan Cacace, J.), entered August 23, 2017, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

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

After the defendant's conviction of a sex offense, he was assessed by the Board of Examiners of Sex Offenders to be a presumptive level one sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C).  After a hearing, the Supreme Court decided to upwardly depart from this presumptive risk level, and designated the defendant a level two sex offender, which designation the defendant challenges on appeal.

In support of their application for an upward departure, the People proved the existence of an aggravating factor by clear and convincing evidence (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  Specifically, the People demonstrated that the defendant engaged in substantially similar sexual misconduct less than two months after committing, and while out on bail for, the instant sex offense (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 15 [2006];  see also People v. Celleri, 138 A.D.3d 708, 27 N.Y.S.3d 888).  Contrary to the defendant's contention, the Supreme Court's discretionary determination that the totality of the circumstances, including this aggravating factor, warranted a departure to avoid an underassessment of the defendant's risk of sexual recidivism was not an improvident exercise of discretion (see People v. Celleri, 138 A.D.3d 708, 27 N.Y.S.3d 888;  People v. Scales, 134 A.D.3d 790, 792, 20 N.Y.S.3d 652;  People v. Amin, 128 A.D.3d 785, 786, 9 N.Y.S.3d 158;  see generally People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Accordingly, we agree with the Supreme Court's designation of the defendant as a level two sex offender.

MASTRO, J.P., SGROI, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.