| People v Kotler |
| 2014 NY Slip Op 08969 [123 AD3d 992] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kerry Kotler, Appellant. |
Steven A. Feldman, Uniondale, N.Y., for appellant.
Richard B. Stafford, Special District Attorney, Bohemia, N.Y. (Nancy B. LeJava ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn,J.), dated March 11, 2013, which, upon a decision dated March 8, 2013, made after ahearing, designated him a level three sex offender pursuant to Correction Law article6-C. The notice of appeal from the decision dated March 8, 2013, is deemed to be anotice of appeal from the order dated March 11, 2013 (see CPLR 5512 [a]).
Ordered that the order is affirmed, without costs or disbursements.
"A court has the discretion to depart from the presumptive risk level based upon thefacts in the record, but a departure from the presumptive risk level is warranted onlywhere 'there exists an aggravating or mitigating factor of a kind, or to a degree, that isotherwise not adequately taken into account by the [Sex Offender Registration Act(hereinafter SORA)] guidelines' " (People v Riley, 85 AD3d 1141, 1141 [2011], quoting SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006];see Correction Law art 6-C; People v Cohen, 73 AD3d 1003, 1004 [2010]; People v Lyons, 72 AD3d776 [2010]). There must be clear and convincing evidence of a special circumstanceto warrant an upward departure from the presumptive risk level (see People v Wyatt, 89 AD3d112, 120 [2011]; People v Cohen, 73 AD3d at 1004; People v Lyons,72 AD3d at 776).
Here, the underlying crime involved the defendant impersonating a police officer inorder to deceive the victim into stopping her car whereupon he then kidnapped her atknife point, threatened to kill her, drove her to a remote wooded location where he rapedher, and thereafter attempted to destroy the physical evidence of his crime. Contrary tothe defendant's contention, the County Court properly determined that thesecircumstances constituted aggravating factors which were not adequately taken intoaccount by the SORA guidelines (see People v Henry, 91 AD3d 927 [2012]; People v Ray, 86 AD3d435 [2011]; People vRios, 57 AD3d 501, 502 [2008]; People v Miller, 48 AD3d 774, 774-775 [2008]; see also People v DeDona, 102AD3d 58, 59 [2012]). Having made such a determination, and properly finding thatthe People proved the aggravating factors by clear and convincing evidence, the CountyCourt providently exercised its discretion in granting the People's application for anupward departure (see People v Wyatt, 89 AD3d at 123).
The defendant's contention that the People failed to provide adequate notice that theyintended to seek an upward departure is unpreserved for appellate review (see Peoplev Charache, [*2]9 NY3d 829, 830 [2007]; People v Bogert, 91 AD3d925, 926 [2012]). The defendant's remaining contention is without merit. Mastro,J.P., Chambers, Sgroi and Miller, JJ., concur.