| People v Duart |
| 2011 NY Slip Op 04021 [84 AD3d 908] |
| May 10, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Douglas Duart, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), forrespondent.
Appeal by the defendant from an order of the Supreme Court, Suffolk County (Kahn, J.),dated April 17, 2009, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court initially determined that the defendant was a level two sex offender,assessing 90 points for factors that included a history of drug abuse, the relationship between thedefendant and the victim, and the number of victims. The Supreme Court then upwardly departedfrom the risk assessment to designate the defendant a level three sex offender, finding that therewere aggravating factors of a kind or to a degree not otherwise taken into account by theguidelines. We affirm the order which designated him a level three sex offender, but for reasonsother than those set forth by the Supreme Court (see People v Hoffman, 62 AD3d 976 [2009]; People v Ashby, 56 AD3d 633[2008]).
Contrary to the defendant's contention, clear and convincing evidence supports the SupremeCourt's determination to assess him 15 points for a history of drug abuse (see People v Murphy, 68 AD3d832, 832-833 [2009]; Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 15 [2006]).
The defendant's contention that he was improperly assessed 20 points because he was not astranger to the complainant is unpreserved for appellate review (see People v Kyle, 64 AD3d 1177[2009]; People v Kelly, 46 AD3d790, 790-791 [2007]; People vAngelo, 3 AD3d 482 [2004]). In any event, 20 points were properly assessed under thisfactor, as the relationship between the defendant and the complainant was promoted for theprimary purpose of victimization (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 12 [2006]). The defendant met the 15-year-old complainant byway of the Internet, and, after learning her age, engaged in sexually explicit conversations withher and persuaded her to send him nude photographs of herself (see People v Tejada, 51 AD3d 472[2008]; cf. People v Helmer, 65AD3d 68 [2009]).
However, the Supreme Court erred in assessing 20 points under the "number of victims"[*2]factor. There was only one victim in the case that ultimatelyresulted in the instant conviction (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 10 [2006]). While the People offered evidence that the defendanthad victimized other underage girls under similar circumstances, those victims were "notassociated with the current offense" (People v Hoffman, 62 AD3d at 976; cf. People v Milton, 55 AD3d1073 [2008]; People vMiddleton, 50 AD3d 1114 [2008], affd 12 NY3d 737 [2009]). Thus, deductingthose points, the defendant accumulated 70 points, placing him, presumptively, at level one.
There exists clear and convincing evidence of aggravating factors of a kind or to a degree nototherwise taken into account by the guidelines that warrant an upward departure (see SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; People v Inghilleri, 21 AD3d 404,405-406 [2005]). The defendant threatened to release the nude photographs he obtained from thecomplainant to her parents and friends when she refused to send him additional photographs orengage in sexually explicit conversations with him and her girlfriend. In addition, the defendantobtained nude photographs of at least two other underage girls and, as threatened, he sentphotographs of one of these girls to schools officials. In light of these circumstances, an upwarddeparture from level one to level three is warranted (see People v Smith, 78 AD3d 805, 806 [2010], lv denied 16NY3d 704 [2011]; People vNewman, 71 AD3d 488 [2010]; People v Fiol, 49 AD3d 834, 834-835 [2008]).
Accordingly, the defendant was properly designated a level three sex offender. Dillon, J.P.,Florio, Chambers and Miller, JJ., concur.