Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Douglas C. TATNER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that reversal is required because County Court applied the wrong burden of proof when it determined that the People had "shown, by a preponderance of the evidence, that an upward departure in the risk level classification [was] warranted." We agree with defendant that the court applied the wrong standard inasmuch as it is well settled that "the People cannot obtain an upward departure pursuant to the guidelines unless they prove the existence of certain aggravating circumstances by clear and convincing evidence" (People v. Gillotti, 23 N.Y.3d 841, 862, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Nevertheless, "remittal is not required because the record is sufficient to enable us to determine under the proper standard whether the court erred" in granting the People's request for an upward departure (People v. Loughlin, 145 A.D.3d 1426, 1427–1428, 44 N.Y.S.3d 821 ).
We conclude that the court properly determined that an upward departure was warranted. "A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors [,] ... [the court determines that] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v. Abraham, 39 A.D.3d 1208, 1209, 834 N.Y.S.2d 413 [internal quotation marks omitted] ). Here, the People established by clear and convincing evidence the existence of numerous aggravating factors not adequately taken into account by the risk assessment guidelines, including defendant's "constant masturbation," which was "indicative of hyper-sexuality"; his "self-reported addiction" to child pornography; and the nature of the images, i.e., the sadomasochistic images of child pornography found on his computer (see People v. Sczerbaniewicz, 126 A.D.3d 1348, 1349, 5 N.Y.S.3d 644 ; see also People v. Guyette, 140 A.D.3d 1555, 1556–1557, 35 N.Y.S.3d 518 ; People v. Lashway, 66 A.D.3d 662, 662–663, 885 N.Y.S.2d 628 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.