| People v Agarwal |
| 2012 NY Slip Op 04547 [96 AD3d 1450] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PrashantAgarwal, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from an order of the Cayuga County Court (Mark H. Fandrich, A.J.), dated June 20,2011. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration 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 two risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court's upward departure from his presumptive classification as a level onerisk to a level two risk is not supported by the requisite clear and convincing evidence(see § 168-n [3]). We reject that contention. There is clear and convincingevidence that defendant used the internet to engage in sexually explicit conversations with anundercover police officer posing as a 14-year-old girl, instructed her to masturbate, provided herwith Web sites to educate her about sexual positions, communicated to her that he wanted toengage in sexual activity with her, and " 'exhibited a willingness to act on his compulsions' " byarranging to meet with her and then arriving at the arranged meeting with various itemsdemonstrating his intent to engage in sexual activity (People v Blackman, 78 AD3d 803, 804 [2010], lv denied16 NY3d 707 [2011]). In our view, the People thereby presented evidence of aggravating factors" 'of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment]guidelines' " (People v McCollum,41 AD3d 1187, 1188 [2007], lv denied 9 NY3d 807 [2007]).Present—Scudder, P.J., Centra, Peradotto, Carni and Lindley, JJ.