| People v McDonnell |
| 2011 NY Slip Op 08131 [89 AD3d 815] |
| November 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph S. McDonnell, Jr., Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.),dated March 4, 2010, 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.
In this proceeding under the Sex Offender Registration Act (see Correction Law art6-C), the Board of Examiners of Sex Offenders (hereinafter the Board) prepared a riskassessment instrument (hereinafter the RAI) assessing points under various risk factors for a totalscore within risk level two. The Board's point assessment was supported by clear and convincingevidence of the applicable risk factors, thus rendering a presumptive risk level two designation(see Correction Law § 168-d [3]; People v Pettigrew, 14 NY3d 406, 408-409 [2010]). The defendantwas properly designated a "predicate sex offender" subject to lifetime registration based upon hisprevious convictions of sex offenses (Correction Law § 168-a [2], [7] [c]; § 168-h[2]).
The defendant contends that the County Court erred in granting the People's application,upon the recommendation of the Board, for an upward departure to risk level three. A court mayexercise its discretion and depart upward from the presumptive risk level where "it concludes thatthere exists an aggravating . . . factor of a kind, or to a degree, that is otherwise notadequately taken into account by the guidelines" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [2006]). There must be clear and convincingevidence of the existence of the aggravating factor to warrant the court's exercise of discretion(see Correction Law § 168-n [3]; People v Wyatt, 89 AD3d 112 [2d Dept2011]; People v [*2]Walker, 67 AD3d 760, 761 [2009]). Contrary to thedefendant's contention, the People demonstrated by clear and convincing evidence the existenceof an aggravating factor that was not adequately taken into account by the guidelines (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [2006])and, on the record presented, the Supreme Court providently granted the People's application foran upward departure (see People v Walker, 67 AD3d at 761; People v Hill, 50 AD3d 990[2008]; People v Agard, 35 AD3d568 [2006]; People v Hines, 24AD3d 524 [2005]).
The defendant's remaining contention is without merit. Angiolillo, J.P., Balkin, Dickersonand Cohen, JJ., concur.