| People v Liguori |
| 2008 NY Slip Op 01729 [48 AD3d 773] |
| February 26, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Liguori, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Hinrichs, J.),dated May 4, 2005, which, after a hearing, designated him a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
We agree with the determination to upwardly depart from the risk assessment score to findthe defendant a level two sex offender under the Sex Offender Registration Act (hereinafterSORA), but for reasons different from those relied upon by the County Court. The record issufficient for this Court to make its own findings of fact and conclusions of law (see People vForney, 28 AD3d 446 [2006]).
The defendant contends that the circumstances underlying his 1997 plea of guilty toharassment are addressed by the assessment of 30 points under risk factor 9 (prior offenses), andthus should not be a basis for an upward departure. However, we find it appropriate to assess 30points under risk factor 9, based not on the defendant's 1997 conviction, but on his 1985conviction for robbery in California, as recommended by the Board of Examiners of SexOffenders in its case summary. An upward departure to level two is supported by thecircumstances of the 1997 incident, which were established by clear and convincing evidence,the proximity in time of that incident to the defendant's commission of the sex offense which wasthe basis for the risk assessment, and the images of child pornography found on the defendant'scomputer at the time of his arrest for the instant sex offense. Those aggravating factors are of akind, and are present to a degree, that is [*2]otherwise notadequately taken into account by the SORA guidelines (see People v Turner, 45 AD3d747 [2007]; People v Hands, 37 AD3d 441 [2007]; People v Dexter, 21 AD3d403 [2005]). Spolzino, J.P., Skelos, Florio and Angiolillo, JJ., concur.