Supreme Court, Appellate Division, Second Department, New York.
PEOPLE of State of New York, Respondent, v. Melvin HARRELL, Appellant.
Decided: January 16, 2019
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
Janet E. Sabel, New York, N.Y. (Jeffrey Dellheim of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, Bronx, and Daniel Berman of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Patricia DiMango, J.), dated February 6, 2014, 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.
The defendant pleaded guilty to sexual abuse in the first degree. Following a hearing pursuant to the Sex Offender Registration Act (see Correction Law article 6–C; hereinafter SORA), the Supreme Court granted the People's application for an upward departure from the defendant's presumptive risk level one designation, and designated him a level three sex offender. On appeal, the defendant contends that the court should have denied the People's application for an upward departure.
Where, as here, the People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the risk assessment instrument, and prove the facts in support of the aggravating factor by clear and convincing evidence (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Cooper, 150 A.D.3d 773, 774, 53 N.Y.S.3d 366; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4  ). Here, the People presented clear and convincing evidence that the defendant, who had sexually assaulted the complainant, also physically restrained the complainant so that the defendant's accomplices could sexually assault the complainant. We agree with the Supreme Court's determination that the defendant's conduct constituted an aggravating factor not adequately taken into account by the SORA guidelines (see People v. Henry, 91 A.D.3d 927, 938 N.Y.S.2d 323). We also agree with the Supreme Court's determination 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 at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).
The defendant's remaining contention is unpreserved for appellate review (see People v. James, 134 A.D.3d 917, 917–918, 20 N.Y.S.3d 540) and, in any event, without merit (see People v. Lashway, 25 N.Y.3d 478, 484, 13 N.Y.S.3d 337, 34 N.E.3d 847; People v. James, 134 A.D.3d at 918, 20 N.Y.S.3d 540).
Accordingly, the Supreme Court providently exercised its discretion in granting the People's application for an upward departure.
DILLON, J.P., ROMAN, MALTESE and CONNOLLY, JJ., concur.
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