| People v LaPorte |
| 2014 NY Slip Op 05312 [119 AD3d 758] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Angel M. LaPorte, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn,J.), dated May 28, 2013, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
"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 [SexOffender Registration Act] guidelines' " (People v Richardson, 101 AD3d 837, 838 [2012], quotingSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4[2006]; see People vWillette, 115 AD3d 920 [2014]; People v Faver, 113 AD3d 662, 663 [2014]; People v Wyatt, 89 AD3d112, 119 [2011]). Here, the County Court properly determined that the Peoplepresented clear and convincing evidence of an aggravating factor not adequately takeninto account by the Sex Offender Registration Act: Risk Assessment Guidelines andCommentary. The defendant has an extensive history of committing offenses constitutingpublic lewdness. While these offenses are not classified as "sex crimes" for purposes ofscoring on the risk assessment instrument, they have a sexual component (see Peoplev Faver, 113 AD3d at 663; People v Twyman, 59 AD3d 415, 416 [2009]; People v Brown, 45 AD3d1123, 1124 [2007]). The commission of these offenses is an aggravating factor"which tends to establish a higher likelihood of reoffense or danger to the community"(People v Wyatt, 89 AD3d at 121). Upon determining the existence of thisaggravating factor, the County Court providently exercised its discretion in granting thePeople's application for an upward departure (see People v Wyatt, 89 AD3d at123). Mastro, J.P., Rivera, Balkin and Miller, JJ., concur.