           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

701
KA 12-00141
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

PRASHANT AGARWAL, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Cayuga County Court (Mark H.
Fandrich, A.J.), dated June 20, 2011. The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     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 County Court’s
upward departure from his presumptive classification as a level one
risk to a level two risk is not supported by the requisite clear and
convincing evidence (see § 168-n [3]). We reject that contention.
There is clear and convincing evidence that defendant used the
internet to engage in sexually explicit conversations with an
undercover police officer posing as a 14-year-old girl, instructed her
to masturbate, provided her with Web sites to educate her about sexual
positions, communicated to her that he wanted to engage in sexual
activity with her, and “ ‘exhibited a willingness to act on his
compulsions’ ” by arranging to meet with her and then arriving at the
arranged meeting with various items demonstrating his intent to engage
in sexual activity (People v Blackman, 78 AD3d 803, 804, lv denied 16
NY3d 707). In our view, the People thereby presented evidence of
aggravating factors “ ‘of a kind, or to a degree, not otherwise
adequately taken into account by the [risk assessment] guidelines’ ”
(People v McCollum, 41 AD3d 1187, 1188, lv denied 9 NY3d 807).




Entered:    June 8, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
