| People v Barad |
| 2008 NY Slip Op 03613 [50 AD3d 988] |
| April 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel Barad, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Luke E. Bovill and Andrew R. Kassof counsel), for respondent.
Appeal by the defendant from an order of the County Court, Orange County (DeRosa, J.),dated January 10, 2007, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Between 1989 and September 1992 the defendant engaged in an ongoing series of varioussexual acts with an underage female who worked for him at his horse farms in Orange County.The defendant pleaded guilty to one count of use of a child in a sexual performance insatisfaction of the indictment. Thereafter, the court sentenced the defendant to an indeterminateterm of imprisonment of 4 to 12 years. In anticipation of the defendant's scheduled release fromstate prison in January 2007, a hearing was held pursuant to the Sex Offender Registration Act,Correction Law article 6-C (hereinafter SORA), on January 3, 2007 to determine his risk ofreoffending, and the defendant was adjudicated a level three sex offender.
A court, in the exercise of its discretion, may depart from the presumptive risk leveldetermined by the risk assessment instrument based upon the facts in the record (see People v Guaman, 8 AD3d545 [2004]). However, "utilization of the risk assessment instrument will generally 'result inthe proper classification in most cases so that departures will be the exception not the rule' "(id., quoting Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [1997 ed]). "A departure from the presumptive risk level is warranted where'there exists aggravating or mitigating factors of a kind or to a degree not otherwise taken into[*2]account by the guidelines' " (People v Inghilleri, 21 AD3d 404,405-406 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [1997 ed]; see Peoplev Mount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d 913 [2004]; People v Guaman, 8AD3d at 545).
Here, in departing from the presumptive risk level, the County Court properly considered thedefendant's demonstrated pattern of manipulation of and deceit concerning the underage femalevictim which led to acts of sexual intercourse, oral sex, and sexual abuse of the underage victim.The defendant videotaped these events, thereby engaging in acts constituting use of a child in asexual performance. Thus, although the defendant's total risk factor score of 100 resulted in hispresumptive classification as a level two risk pursuant to SORA, the County Court'sdetermination that the defendant was a level three risk was supported by clear and convincingevidence (see Correction Law § 168-n [3]; People v Brown, 302 AD2d919, 920 [2003]).
Accordingly, the County Court providently exercised its discretion in designating thedefendant a level three sex offender (see Correction Law § 168-m).
The defendant's remaining contentions are without merit. Spolzino, J.P., Lifson, Florio andDickerson, JJ., concur.