Opinion
2017–10080
08-19-2020
PEOPLE of State of New York, Respondent, v. David GREER, Appellant.
Paul Skip Laisure, New York, N.Y. (Hannah Zhao of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Hannah Zhao of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Queens County (Gia Morris, J.), dated August 9, 2017, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of attempted course of sexual conduct against a child in the second degree. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), and upon granting the People's application for an upward departure from the defendant's presumptive level one risk designation, the Supreme Court designated the defendant a level two sex offender.
Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if "special circumstances" warrant a departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines] ). An upward departure is permitted only if the court concludes, upon clear and convincing evidence, that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines (see Guidelines at 4; People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Sandy, 173 A.D.3d 915, 100 N.Y.S.3d 346 ).
Here, contrary to the defendant's contention, the Supreme Court properly determined that the People presented clear and convincing evidence of an aggravating factor not adequately taken into account by the Guidelines, namely, his commission of a subsequent offense (see People v. Celleri, 138 A.D.3d 708, 27 N.Y.S.3d 888 ; see also People v. Gauthier, 100 A.D.3d 1223, 1225–1226, 954 N.Y.S.2d 240 ). Upon making such a determination, the court did not improvidently exercise its discretion in granting the People's application for an upward departure (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Gauthier, 100 A.D.3d at 1225–1226, 954 N.Y.S.2d 240 ).
SCHEINKMAN, P.J., BALKIN, CHAMBERS and WOOTEN, JJ., concur.