| People v Cruz |
| 2013 NY Slip Op 07458 [111 AD3d 685] |
| November 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alexis M. Cruz, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel),for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of theCounty Court, Suffolk County (Kahn, J.), dated July 5, 2012, as, after a hearing,designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The defendant was designated a level two sex offender pursuant to Correction Lawarticle 6-C, upon the County Court's exercise of discretion to upwardly depart from thedefendant's presumptive risk level. An upward departure from the presumptive risk levelis warranted "where 'there exists an aggravating . . . factor of a kind or to adegree not otherwise adequately taken into account' " by the Sex Offender RegistrationAct (hereinafter SORA) Guidelines (People v Bowens, 55 AD3d 809, 810 [2008], quoting SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v Wyatt, 89 AD3d112, 120 [2011]; People vWhite, 25 AD3d 677 [2006]; People v Dexter, 21 AD3d 403, 404 [2005]; People v Guaman, 8 AD3d545 [2004]). "[T]he cited aggravating factor must tend to establish a higherlikelihood of reoffense or danger to the community," and "the People must prove thefacts in support of the aggravating factor by clear and convincing evidence" (People vWyatt, 89 AD3d at 123; seePeople v Campbell, 98 AD3d 5, 13 [2012]).
Here, the People presented clear and convincing evidence of the existence ofaggravating factors not otherwise adequately taken into account by the SORAGuidelines, which established a higher likelihood of reoffense and danger to thecommunity. Specifically, the People proffered the defendant's admission to havingsexually abused the victim on one prior occasion (see People v Geier, 56 AD3d 539 [2008]; People v Hammonds, 27 AD3d441, 442 [2006]), as well as the public and conspicuous nature of the offense, whichreflected the defendant's "lack of inhibition and insight into and concern for theinappropriateness of his conduct" (People v Walker, 105 AD3d 1154, 1155 [2013]). Basedupon these aggravating factors, the County Court providently exercised its discretion inupwardly departing from the presumptive risk level (see People v Worley, 57 AD3d 753, 754 [2008]; People v Villane, 49 AD3d517 [2008]). Rivera, J.P., Skelos, Chambers and Hall, JJ., concur.