| People v Faver |
| 2014 NY Slip Op 00211 [113 AD3d 662] |
| January 15, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kyle R. Faver, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel;Philip Scholz on the brief), 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 January 28, 2013, 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.
After the defendant's convictions of two sex crimes in Florida, he relocated to NewYork. Following a hearing to determine the defendant's risk level pursuant to the SexOffender Registration Act (see Correction Law art 6-C [hereinafter SORA]), theCounty Court granted the People's application for an upward departure from thedefendant's presumptive risk level one designation.
"A court may exercise its discretion and depart upward from the presumptive risklevel where 'it concludes that there exists an aggravating . . . factor of akind, or to a degree, that is otherwise not adequately taken into account by the (SORA)guidelines' " (People vRichardson, 101 AD3d 837, 838 [2012], quoting Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 4 [2006]).
Contrary to the defendant's contention, the County Court properly determined thatthe People provided clear and convincing evidence of aggravating factors not adequatelytaken into account by the SORA guidelines. While several of the defendant's prioroffenses are not classified as "sex crimes" for purposes of scoring on the risk assessmentinstrument (hereinafter RAI), they did have a sexual component to them (see People v Mingo, 12 NY3d563, 570 [2009]; People vFreeman, 85 AD3d 1335, 1336 [2011]; People v Twyman, 59 AD3d 415, 416 [2009]). Further, theRAI failed to account for the defendant's conviction in Florida, after his commission ofthe instant offenses, of failure to comply with sex offender reporting requirements of thatState (see People v Porter,74 AD3d 767, 768 [2010]; People v Turpeau, 68 AD3d 1083 [2009]; People v Walker, 67 AD3d760, 761 [2009]). Upon determining the existence of these aggravating factors, theCounty Court providently exercised its discretion in granting the People's application foran upward departure (seePeople v Wyatt, 89 AD3d 112, 123 [2011]). Skelos, J.P., Lott, Cohen andHinds-Radix, JJ., concur.