PEOPLE v. CRAMER (2026)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Dutchess County (Edward T. McLoughlin, J.), dated March 6, 2024, 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.

At a hearing to designate the defendant's risk level pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the People sought an upward departure from the defendant's presumptive level two risk designation.  The County Court granted the People's application for an upward departure and designated the defendant a level three sex offender.  The defendant appeals.

Where the People seek an upward departure from the presumptive risk level, they must identify an appropriate aggravating factor, that is, a factor which tends to establish a higher likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise adequately taken into account by the Guidelines, and establish the facts in support of the aggravating factor by clear and convincing evidence (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v. Gillotti, 23 NY3d 841, 861–862;  People v. Kreig, 245 AD3d 746).  When the People have met this burden, the court must then “exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an ․ under-assessment of the defendant's dangerousness and risk of sexual recidivism” (People v. Gillotti, 23 NY3d at 861;  see People v. Mayrhofer, 247 AD3d 1224, 1224).

Here, the People demonstrated, by clear and convincing evidence, that there were aggravating factors not adequately taken into account by the Guidelines, including the defendant's commission of other sex offenses (see People v. Jackson, 209 AD3d 880, 881;  People v. Songster, 207 AD3d 579, 582), as well as his conduct of transmitting sexually explicit images to adolescents on social media (see People v. Clark, 169 AD3d 836, 837).  Further, after weighing the aggravating and mitigating factors, the County Court providently exercised its discretion in determining that the totality of the circumstances warranted an upward departure to avoid an under-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Mayrhofer, 247 AD3d at 1225;  People v. Jackson, 209 AD3d at 881;  People v. Songster, 207 AD3d at 582).

The defendant's remaining contention is without merit.

Accordingly, we affirm the order designating the defendant a level three sex offender.

IANNACCI, J.P., VOUTSINAS, GOLIA and QUIRK, JJ., concur.