| People v Allen |
| 2017 NY Slip Op 05250 [151 AD3d 1087] |
| June 28, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darrin Allen, Appellant. |
Seymour W. James, Jr., New York, NY (Paul Wiener of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Mattei, J.),dated October 22, 2015, 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.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in granting the People's request for an upward departure from the presumptive risklevel two designation, to risk level three. The People demonstrated, by clear and convincingevidence, the existence of an aggravating factor that was not adequately taken into account by theSex Offender Registration Act guidelines (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 4 [2006]; People v Gillotti, 23 NY3d 841, 861 [2014]). The proof presentedat the hearing established, inter alia, that the defendant was convicted in Virginia of failing toregister as a sex offender, which justified the court's determination to grant the People's requestfor an upward departure (see People vBoyd, 121 AD3d 658, 658-659 [2014]; People v Faver, 113 AD3d 662, 663 [2014]; People v Porter, 74 AD3d 767,767-768 [2010]; People v Turpeau,68 AD3d 1083 [2009]; People vWalker, 67 AD3d 760, 761 [2009]).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.Mastro, J.P., Rivera, Roman and Sgroi, JJ., concur.