| People v Perez |
| 2018 NY Slip Op 00666 [158 AD3d 1070] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v SamuelPerez, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from an order of the Monroe County Court (James J. Piampiano, J.), enteredDecember 14, 2015. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: On appeal from an order determining that he is a level two risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court erred in granting an upward departure from his presumptiveclassification as a level one risk to a level two risk. We reject that contention.
It is well settled that when the People establish, by clear and convincing evidence(see Correction Law § 168-n [3]), the existence of aggravating factors thatare, "as a matter of law, of a kind or to a degree not adequately taken into account by the [riskassessment] guidelines," a court "must exercise its discretion by weighing the aggravating and[any] mitigating factors to determine whether the totality of the circumstances warrants adeparture" from a sex offender's presumptive risk level (People v Gillotti, 23 NY3d 841, 861 [2014]; see People v Sincerbeaux, 27 NY3d683, 689-690 [2016]; Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [2006]). Here, the People established by clear and convincing evidence that,concurrent with his conviction in Florida of the felony sex offense underlying the presentregistration, defendant was convicted of two counts of attempted false imprisonment arising froman incident occurring several months after he was arrested for the underlying sex offense inwhich he attempted to lure two female children under the age of 13 into his vehicle. The courtproperly determined that the concurrent conviction is an aggravating factor not taken into accountby the risk assessment guidelines that provides a basis for an upward departure inasmuch as it is"indicative that the offender poses an increased risk to public safety" (Risk AssessmentGuidelines and Commentary at 14; seePeople v Colsrud, 155 AD3d 1601, 1602 [4th Dept 2017]; People v Neuer, 86 AD3d 926, 927[4th Dept 2011], lv denied 17 NY3d 716 [2011]). Contrary to defendant's furthercontention, his two more recent convictions based on his failure to register as a sex offender are"not adequately taken into consideration by the risk assessment guidelines and [were] properlyconsidered as [further] justification for the upward departure" (People v Roberts, 54 AD3d 1106,1107 [3d Dept 2008], lv denied 11 NY3d 713 [2008]; see People v Allen, 151 AD3d 1087, 1088 [2d Dept 2017], lvdenied 30 NY3d 903 [2017]; Peoplev Brown, 149 AD3d 411, 411 [1st Dept 2017], lv denied 29 NY3d 914[2017]; People v Staples, 37 AD3d1099, 1099 [4th Dept 2007], lv denied 8 NY3d 813 [2007]).Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.