| People v Harris |
| 2008 NY Slip Op 03829 [50 AD3d 1556] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey Harris,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), enteredMay 23, 2007. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two riskpursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).Although the total risk factor score on the risk assessment instrument (RAI) prepared by theBoard of Examiners of Sex Offenders (Board) resulted in the presumptive classification ofdefendant as a level one risk, Supreme Court agreed with the Board's recommendation that anupward departure from defendant's presumptive risk level was warranted based upon aggravatingfactors not taken into account by the RAI. We affirm. Contrary to defendant's contention, thecourt properly concluded that the risk factor for continuing course of sexual misconduct did notadequately take into account either the nature and duration of the sexual abuse or defendant'svideotaping of at least one instance of that abuse (see generally People v Leibach, 39 AD3d 1093, 1094 [2007], lvdenied 9 NY3d 806 [2007]; Peoplev Allen, 24 AD3d 979, 980 [2005]), thus warranting the upward departure (see People v Girup, 9 AD3d 913[2004]). Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.