| People v Taylor |
| 2008 NY Slip Op 01731 [48 AD3d 775] |
| February 26, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamarTaylor, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (R.Bellantoni, J.), entered December 8, 2006, which, after a hearing, designated him a level threesex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In establishing the appropriate risk level determination under the Sex Offender RegistrationAct, the People bear the burden of proving the necessary facts by clear and convincing evidence(see Correction Law § 168-n [3]; People v Mingo, 49 AD3d148, 150 [2008]; People v Lawless, 44 AD3d 738[2007], lv denied 9 NY3d 816 [2007]; People v Hardy, 42 AD3d 487 [2007],lv denied 9 NY3d 814 [2007]).
Here, the defendant argues that the People failed to establish, by clear and convincingevidence, that he engaged in a continuing course of sexual misconduct with the 13-year-oldvictim. We disagree. The evidence established that the defendant committed two acts of sexualmisconduct, at least one of which included sexual intercourse, over a period greater than 24 hours(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10[2006 ed] [hereinafter SORA Guidelines]). The defendant admitted that he had sexualintercourse with the victim during the first incident. With respect to the second incident, theCounty Court's statements at the hearing sufficiently set forth its finding, which was supported byclear and convincing evidence, that this incident included sexual contact (id. at 10; cf.People [*2]v Madlin, 302 AD2d 751, 752 [2003]).
We likewise reject the defendant's contention that the County Court should not have assessed20 points under risk factor 7. The evidence was clear and convincing that, at a time when heknew that the victim was less than 17 years old (see Penal Law § 130.05 [3] [a]),the defendant promoted his relationship with the victim primarily for the purpose of sexualcontact (see SORA Guidelines at 12).
Finally, the defendant's contention that the County Court erred in declining to downwardlydepart from the presumptive risk level designation so as to designate him a level two offender ismeritless. A departure from the presumptive risk level is generally warranted only where "thereexists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately takeninto account by the guidelines" (id. at 4; see People v Burgos, 39 AD3d 520[2007]). Here, the defendant failed to establish the existence of such a mitigating factor.Moreover, the County Court was not bound by the recommendation of the New York State Boardof Examiners of Sex Offenders, but was instead entitled to determine the defendant's risk levelbased on the record before it (see People v Charache, 32 AD3d 1345 [2006], affd9 NY3d 829 [2007]; People v Carswell, 8 AD3d 1073 [2004]). The County Courtproperly found that the presumptive risk level accurately assessed the defendant's likelihood ofreoffense and thus properly declined to depart from that risk assessment level. Skelos, J.P.,Fisher, Dillon and McCarthy, JJ., concur.