| People v Ashby |
| 2008 NY Slip Op 09051 [56 AD3d 633] |
| November 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andrew Ashby, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Wong, J.),dated October 17, 2006, 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.
We agree with the Supreme Court's determination to upwardly depart from the riskassessment score to find the defendant a level three sex offender under the Sex OffenderRegistration Act (hereinafter SORA), but for reasons different from those relied upon by theSupreme Court. The record is sufficient for this Court to make its own findings of fact andconclusions of law (see People v Hill, 50 AD3d 990 [2008]; People v Liguori, 48AD3d 773 [2008]; People v Forney, 28 AD3d 446 [2006]).
The defendant correctly contends that the Supreme Court erred to the extent it considered asaggravating factors in support of an upward departure those circumstances for which he wasscored the maximum points for the duration of his sexual misconduct and the nature of his sexualcontact with the victim. However, there was clear and convincing evidence of aggravatingfactors, of a kind and present to a degree, that otherwise were not adequately taken into accountby the SORA guidelines (see People v Miller, 48 AD3d 774, 774-775 [2008]; Peoplev Liguori, 48 AD3d 773 [2008]; People v Turner, 45 AD3d 747 [2007]). Here, anupward departure was supported by (1) the defendant's institutional record, for which he was not[*2]scored points on the risk assessment instrument (hereinafterRAI), (2) the defendant's infliction of pain and the other indicia of force present in his sexualassaults on a seven-year-old child who fled from his attempts at sexual contact on four occasionswhen she was able to flee, apart from the two when she was not, for which he was not scoredpoints under the use of violence category of the RAI, and (3) the defendant's infection of thechild with a sexually-transmitted disease. Accordingly, the defendant was appropriatelydetermined to be a level three sex offender.
The defendant's remaining contentions either are unpreserved for appellate review (seePeople v Patterson, 51 AD3d 750 [2008], lv denied 11 NY3d 704 [2008]; Peoplev Kelly, 46 AD3d 790 [2007]), or are without merit. Skelos, J.P., Angiolillo, Balkin andChambers, JJ., concur.