| People v Montes |
| 2015 NY Slip Op 09662 [134 AD3d 1083] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mike Montes, Appellant. |
Lynn W. L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andAnthea H. Bruffee of counsel; Craig Marinaro and Jacquelyn Dainow on the brief), forrespondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(DiMango, J.), dated February 27, 2014, which, after a hearing, designated him a levelthree sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In determining the defendant's risk level under the Sex Offender Registration Act(Correction Law art 6-C [hereinafter SORA]), the Supreme Court improperly assessedhim 20 points under risk factor 7, based on his relationship as a foster parent to the twovictims. The evidence demonstrated that the defendant was the step-grandfather of thetwo female victims, and had access to them both before and after becoming a fosterparent. The People failed to establish, by clear and convincing evidence, that thedefendant established or promoted the foster parent relationship with hisstep-granddaughters for the primary purpose of victimization (see People v Stein, 63 AD3d99, 101-102 [2009]; Sex Offender Registration Act: Risk Guidelines andCommentary [hereinafter SORA Guidelines] at 12 [2006]). Accordingly, the courtshould not have assessed the defendant 20 points under risk factor 7. Removing those 20points reduces his point total to 100, rendering him a presumptive level two sexoffender.
However, the Supreme Court properly determined, in the alternative, that an upwarddeparture from a level two to a level three designation was warranted. The SORAGuidelines did not adequately take into account the egregious and abhorrent nature of thedefendant's sexual abuse of his stepgranddaughters, which began, at the latest, when theywere the ages of three and five, respectively, and the defendant's perception that hisstepgranddaughters had initiated the sexual activity with him (see People v Botindari, 107AD3d 1607 [2013]; Peoplev Carbone, 89 AD3d 1392, 1393 [2011]; People v May, 77 AD3d 1388 [2010]; People v Mantilla, 70 AD3d477 [2010]; People vFrosch, 69 AD3d 699 [2010]). Accordingly, under these circumstances, thedefendant was properly adjudicated a level three sex offender. Hall, J.P., Austin, Romanand Barros, JJ., concur.