| People v Henry |
| 2012 NY Slip Op 00763 [91 AD3d 927] |
| January 31, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TracyJ. Henry, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), forrespondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the CountyCourt, Suffolk County (Kahn, J.), dated October 28, 2010, 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.
"A court has the discretion to depart from the presumptive risk level based upon the facts inthe record, but a departure from the presumptive risk level is warranted only where 'there existsan aggravating factor or mitigating factor of a kind, or to a degree, that is otherwise notadequately taken into account by the [Sex Offender Registration Act (hereinafter SORA)]guidelines' " (People v Riley, 85AD3d 1141, 1141 [2011], quoting Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]; see Correction Law art 6-C; People v Cohen, 73 AD3d 1003,1004 [2010]; People v Lyons, 72AD3d 776 [2010]). There must be clear and convincing evidence of a special circumstanceto warrant an upward departure from the presumptive risk level (see People v Wyatt, 89 AD3d 112,120 [2011], lv denied 18 NY3d 803 [2012];People v Cohen, 73 AD3d at 1004; People v Lyons, 72 AD3d at 776).
Here, the underlying crime involved the defendant and another man kidnapping the victim atgunpoint, handcuffing her, and driving her for hours to a remote location where they took turnsraping her before holding her for hours longer in captivity until she jumped into a river to escape.Under the circumstances, contrary to the defendant's contention, the County Court properlydetermined that there were aggravating factors not adequately taken into account by the SORAguidelines (see People v Ray, 86AD3d 435 [2011]; People vRios, 57 AD3d 501, 502 [2008]; People v Miller, 48 AD3d 774, 774-775 [2008]; People v Joslyn, 27 AD3d 1033,1034-1035 [2006]). Upon making such a determination, the County Court providently exercisedits discretion in granting the People's application for an upward departure (see People vWyatt, 89 AD3d at 123). Rivera, J.P., Eng, Lott and Sgroi, JJ., concur.