Opinion
529547
10-07-2021
The People of the State of New York, Respondent, v. Jonathan Waters, Appellant.
Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.
Calendar Date: September 14, 2021
Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.
Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
Reynolds Fitzgerald, J.
Appeal from an order of the Supreme Court (Lynch, J.), entered January 24, 2019 in Albany County, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.
On March 18, 2017, defendant installed a video/imaging recording device inside of a Starbucks coffeehouse bathroom located in the Town of Colonie, Albany County to record and view the nudity of adult women. An employee of Starbucks subsequently discovered the device plugged into a wall socket that was located next to the sink and across from the toilet, and defendant was ultimately apprehended by law enforcement. In December 2017, defendant pleaded guilty to unlawful surveillance in the second degree and, consistent with the plea agreement, was sentenced to a prison term of 1 to 3 years. In anticipation of defendant's release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) that scored defendant as having 15 points, presumptively classifying him as a risk level one sex offender. The People prepared a separate RAI, wherein they sought to impose an additional 30 points for the number of victims (risk factor 3) and 20 points for defendant's relationship with the victims (risk factor 7). Although such scoring yielded 65 points, which presumptively classified defendant as a risk level one sex offender, the People sought an upward departure to a risk level two classification. Following a hearing, Supreme Court determined that an upward departure was appropriate and classified defendant as a risk level two sex offender. Defendant appeals.
We affirm. "An upward departure from the presumptive risk level is justified when an aggravating factor, not adequately taken into account by the risk assessment guidelines, is established by clear and convincing evidence" (People v Headwell, 156 A.D.3d 1263, 1264 [2017], lv denied 31 N.Y.3d 902 [2018] [internal quotation marks and citations omitted]; see People v Gillotti, 23 N.Y.3d 841, 861-862 [2014]; People v Nash, 114 A.D.3d 1008, 1008 [2014]). A concurrent or subsequent conviction may provide "the basis for an upward departure if it is indicative that the offender poses an increased risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]; see People v Calderon, 126 A.D.3d 1383, 1384 [2015], lv denied 25 N.Y.3d 909 [2015]; People v Becker, 120 A.D.3d 846, 847 [2014], lv denied 24 N.Y.3d 908 [2014]; People v Ryan, 96 A.D.3d 1692, 1693 [2012], lv dismissed 20 N.Y.3d 929 [2012]; see also People v Miller, 149 A.D.3d 1279, 1280 [2017]).
As defendant concedes, the People presented evidence of defendant's contemporaneous commission and subsequent conviction in Saratoga County of the same offense at issue here, unlawful surveillance in the second degree, which was not addressed in the RAI. "That contemporaneous conviction provides the basis for an upward departure inasmuch [as] it is indicative that the offender poses an increased risk to public safety" (People v Colsrud, 155 A.D.3d 1601, 1602 [2017] [internal quotation marks and citations omitted]; see People v Mangan, 174 A.D.3d 1337, 1338 [2019], lv denied 34 N.Y.3d 905 [2019]; People v Becker, 120 A.D.3d at 847; People v Vasquez, 49 A.D.3d 1282, 1284-1285 [2008]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]). The People also presented evidence of another aggravating factor not taken into account by the RAI, specifically, the discovery of video files during a search of defendant's home depicting unknown men and women using public restrooms and public showers in unknown locations (cf. People v Ryan, 157 A.D.3d 463, 463 [2018], lv denied 31 N.Y.3d 904 [2018]; People v Headwell, 156 A.D.3d at 1264). In view of the foregoing evidence, we are satisfied that the People proved, by clear and convincing evidence, an increased likelihood of recidivism based upon the presence of aggravating factors not adequately taken into consideration by the RAI (see People v Gillotti, 23 N.Y.3d at 861). Further we discern no abuse of discretion in Supreme Court's determination that the aggravating factors outweighed the mitigating factors cited by defendant, including character references and positive evaluations from his sex offender treatment program, and that an upward departure from the presumptive risk level classification was therefore appropriate in this case (see People v Gillotti, 23 N.Y.3d at 861; People v Coon, 184 A.D.3d 1091, 1092 [2020], lv denied 35 N.Y.3d 916 [2020]; People v Mangan, 174 A.D.3d at 1339).
Defendant was not charged with an additional offense for his possession of these videos.
Garry, P.J., Aarons, Pritzker and Colangelo, JJ., concur.
ORDERED that the order is affirmed, without costs.