| People v James |
| 2007 NY Slip Op 08430 [45 AD3d 555] |
| November 7, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JesseJames, Jr., Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg of counsel), forrespondent.
Appeal by the defendant from an amended order of the County Court, Nassau County(Berkowitz, J.), dated June 15, 2006, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the amended order is affirmed, without costs or disbursements.
The defendant, who was convicted following a jury trial of rape in the second degree, incest(two counts), rape in the third degree, and endangering the welfare of a child, contends that theCounty Court erred in upwardly departing from the presumptive risk level two recommendationmade by the Board of Examiners of Sex Offenders.
Upon our independent review of the record, we find clear and convincing evidence ofaggravating factors not taken into account by the risk assessment instrument (see People v Agard, 35 AD3d 568[2006]; People v Dexter, 21 AD3d403, 404 [2005]), which warranted an upward departure. In particular, evidence derivedfrom the pre-sentence report demonstrated that the defendant had a history of violent and abusivedealings with the underaged victim and her mother.
The defendant's remaining contentions either are unpreserved for appellate review, arewithout merit, or need not be addressed in view of the propriety of an upward departure (seePeople v Myers, 306 AD2d 334 [2003]). Crane, J.P., Lifson, Carni and Balkin, JJ., concur.