| People v Willette |
| 2014 NY Slip Op 02021 [115 AD3d 920] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gerald Willette, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant (1) from an order of the County Court, Dutchess County(Greller, J.), dated March 2, 2012, which, after a hearing, designated him a level threesex offender pursuant to Correction Law article 6-C, and (2), as limited by his brief, fromso much of an order of the same court dated September 13, 2012, as, upon reargument, ineffect, vacated the prior determination in the order dated March 2, 2012, and thereupondesignated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order dated March 2, 2012, is dismissed, without costs ordisbursements, as that order was superseded by the order dated September 13, 2012,made upon reargument; and it is further,
Ordered that the order dated September 13, 2012, is affirmed insofar as appealedfrom, without costs or disbursements.
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 designated the defendant a level three sex offender. Thereafter, thedefendant moved for leave to reargue. Upon reargument, the County Court determinedthat it had erroneously assessed certain points under the risk assessment instrument.Specifically, the County Court determined that it had intended to assess a total of only 60points, which presumptively placed the defendant in a level one presumptive risk level.The County Court, however, granted the People's application for an upward departurefrom the defendant's presumptive risk level and, thereupon, designated him a level twosex offender.
"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]; see People v Faver, 113 AD3d662 [2014]). Here, upon reargument, the County Court properly determined that thePeople provided clear and convincing evidence of an aggravating factor not adequatelytaken into account by the SORA guidelines and, thereupon, providently exercised itsdiscretion in granting the People's application for an upward departure (see People v [*2]Wyatt, 89 AD3d 112, 120, 123 [2011]; SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 4). Rivera,J.P., Lott, Roman and Hinds-Radix, JJ., concur.