Opinion
275 KA 14-00545
03-20-2015
The PEOPLE of the State of New York, Respondent, v. Eluid CALDERON, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan Of Counsel), for ResponDent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan Of Counsel), for ResponDent.
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, and DeJOSEPH, JJ.
Opinion
MEMORANDUM: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that Supreme Court's upward departure from his presumptive classification as a level one risk to a level two risk is not supported by clear and convincing evidence. Contrary to defendant's contention, we conclude that the People presented “the requisite clear and convincing evidence ‘that there exists an aggravating ... factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines' ” (People v. McCollum, 41 A.D.3d 1187, 1188, 839 N.Y.S.2d 360, lv. denied 9 N.Y.3d 807, 843 N.Y.S.2d 537, 875 N.E.2d 30 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006] ). It is undisputed that, at the time of his plea of guilty to criminal sexual act in the first degree (Penal Law § 130.50[4] ), defendant also pleaded guilty to an unrelated charge of assault in the second degree (§ 120.05[2] ). Defendant was not assessed any points under the risk assessment instrument for a prior violent felony. A concurrent conviction may provide the basis for an upward departure if it is “indicative that the offender poses an increased risk to public safety” (Risk Assessment Guidelines and Commentary, at 14; see People v. Becker, 120 A.D.3d 846, 847, 990 N.Y.S.2d 743, lv. denied 24 N.Y.3d 908, 2014 WL 5437028 ; People v. Ryan, 96 A.D.3d 1692, 1693, 947 N.Y.S.2d 869, lv. dismissed 20 N.Y.3d 929, 957 N.Y.S.2d 688, 981 N.E.2d 284 ), and, under the circumstances presented, we conclude that the court did not err in granting the People's request for an upward departure from a level one risk to a level two risk (see generally Ryan, 96 A.D.3d at 1693, 947 N.Y.S.2d 869 ; People v. Lowery, 93 A.D.3d 1269, 1271, 940 N.Y.S.2d 745, lv. denied 19 N.Y.3d 807, 2012 WL 2401529 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.