| People v Bogert |
| 2012 NY Slip Op 00762 [91 AD3d 925] |
| January 31, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ScottA. Bogert, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the CountyCourt, Dutchess County (Dolan, J.), dated October 9, 2007, as, after a hearing, designated him alevel three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The risk assessment instrument generally results in a "presumptive" risk level determination(Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006][hereinafter Guidelines]; see People vFrosch, 69 AD3d 699 [2010]; People v Richardson, 47 AD3d 905 [2008]). While a court hasdiscretion to depart from the presumptive risk level, a departure is generally the exception, notthe rule, and is warranted only where "there exists an aggravating or mitigating factor of a kind,or to a degree, that is otherwise not adequately taken into account by the guidelines" (Guidelinesat 4; see People v King, 74 AD3d1162, 1163 [2010]; People vRios, 57 AD3d 501, 502 [2008]; People v Miller, 48 AD3d 774, 775 [2008]; People v White, 25 AD3d 677[2006]; People v Inghilleri, 21AD3d 404, 406 [2005]). Where the People seek an upward departure, "an appropriateaggravating factor is one which tends to establish a higher likelihood of reoffense or danger tothe community" (People v Wyatt, 89AD3d 112, 121 [2011], lv denied 18 NY3d 803 [2012]). The People must establish the facts warranting an upward departure by clear andconvincing evidence (see People vThomas, 66 AD3d 750 [2009]; cf. People v Wyatt, 89 AD3d at 122-123).
Here, even accepting the defendant's contention that the County Court, in upwardly departingfrom the presumptive risk level two to risk level three, failed to set forth adequate findings of factand conclusions of law as mandated by Correction Law § 168-n (3), remittal is notrequired as the record is sufficient for this Court to make its own findings of fact and conclusionsof law (see People v Melzer, 89AD3d 1000 [2011]; People vVega, 79 AD3d 718 [2010]; People v Rodriguez, 78 AD3d 1140 [2010]; People v Forney, 28 AD3d 446[2006]). In support of their application for an upward departure, the People presented clear andconvincing evidence of the existence of aggravating factors, including the defendant's admittedfailure to voluntarily comply with a medication regimen to control his mental illness and hisprofessed belief that although the [*2]sexual offenses hecommitted against his daughter were illegal, his conduct was morally proper (seeGuidelines at 4-5; People v Wyatt, 89 AD3d at 121). Accordingly, the County Courtprovidently exercised its discretion in upwardly departing from the presumptive risk level two torisk level three (see Correction Law § 168-n [3]; People v Wyatt, 89 AD3dat 121).
The defendant's contention that the People failed to provide adequate notice that they mightseek an upward departure is unpreserved for appellate review (see People v Charache, 9 NY3d829, 830 [2007]) and, in any event, without merit (see Correction Law § 168-n[3]; People v Thompson, 31 AD3d409 [2006]; People vHammonds, 27 AD3d 441 [2006]).
The defendant's remaining contentions are without merit. Balkin, J.P., Leventhal, Belen andRoman, JJ., concur.