| People v May |
| 2010 NY Slip Op 06938 [77 AD3d 1388] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lee O. May,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Douglas A. Goerss of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredFebruary 23, 2009. The order determined that defendant is a level three risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the SexOffender Registration Act (Correction Law § 168 et seq.), defendant contends thatSupreme Court's upward departure from his presumptive classification as a level two risk is notsupported by clear and convincing evidence. We reject that contention (see People v Gandy, 35 AD3d 1163[2006]; People v Seils, 28 AD3d1158 [2006], lv denied 7 NY3d 709 [2006]). "A court may make an upward departurefrom a presumptive risk level when, 'after consideration of the indicated factors . . . [,]there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequatelytaken into account by the [risk assessment] guidelines' " (People v Cruz, 28 AD3d 819, 819 [2006]; see People v Foley, 35 AD3d 1240[2006]). Here, there is clear and convincing evidence that, over a three- to four-month period,defendant committed numerous sexual offenses against his stepdaughter, who was eight years old whenthe abuse began. In addition, defendant began abusing his stepdaughter within six months of his releasefrom probation for a prior conviction arising from his sexual abuse of two female cousins, who wereeight and nine years old at the time of the abuse. We conclude that both the ages of the victims and thegross abuse by defendant of the familial relationship that he had with those young children constitutedproper aggravating factors not otherwise taken into account by the risk assessment guidelines (see People v Hill, 50 AD3d 990[2008], lv denied 11 NY3d 701 [2008]; People v Ferrer, 35 AD3d 297 [2006], lv denied 8NY3d 807). Present—Scudder, P.J., Centra, Peradotto, Sconiers and Pine, JJ.