| People v Botindari |
| 2013 NY Slip Op 04530 [107 AD3d 1607] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v David Botindari, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Heather M. Destefano of counsel), forrespondent.
Appeal from an order of the Cayuga County Court (Mark H. Fandrich, A.J.), enteredNovember 14, 2011. The order determined that defendant is a level three risk pursuant tothe Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: On appeal from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act (Correction Law § 168 etseq.), defendant contends that County Court's upward departure from hispresumptive classification as a level two risk is not supported by clear and convincingevidence. We reject that contention. "A court may make an upward departure from apresumptive risk level when, after consideration of the indicated factors . . .[,] there exists an aggravating . . . factor of a kind, or to a degree, nototherwise adequately taken into account by the [risk assessment] guidelines" (People v Grady, 81 AD3d1464, 1464 [2011] [internal quotation marks omitted]; see People v Wheeler, 59AD3d 1007, 1008 [2009], lv denied 12 NY3d 711 [2009]). Here, there isclear and convincing evidence that defendant committed a series of sexual offensesagainst his girlfriend's daughter over the course of more than seven years, beginningwhen the victim was five years old. Contrary to defendant's contention, the court properlyconcluded that the risk assessment instrument prepared by the Board of Examiners ofSex Offenders did not adequately take into account the nature and duration of the sexualabuse, including the victim's young age when the abuse began and defendant'sexploitation of his relationship of trust with the victim's family (see People v May, 77 AD3d1388, 1388 [2010]; Peoplev Mantilla, 70 AD3d 477, 478 [2010], lv denied 15 NY3d 706[2010]; see generally People vHarris, 50 AD3d 1556, 1557 [2008], lv denied 10 NY3d 716 [2008]; People v Leibach, 39 AD3d1093, 1094 [2007], lv denied 9 NY3d 806 [2007]). Present—Centra,J.P., Peradotto, Sconiers, Valentino and Whalen, JJ.