

People v Iacono (2016 NY Slip Op 00949)





People v Iacono


2016 NY Slip Op 00949


Decided on February 10, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 10, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SANDRA L. SGROI
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.


2013-08888

[*1]People of State of New York, respondent,
vLawrence Iacono, appellant.


Kent V. Moston, Hempstead, NY (Jeremy L. Goldberg and David Bernstein of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Ilisa T. Fleischer and Robert L. Cavallo of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Nassau County (Delligatti, J.), dated July 18, 2013, 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.
"A court may exercise its discretion and depart upward from the presumptive risk level where  it concludes that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [Sex Offender Registration Act] guidelines'" (People v Richardson, 101 AD3d 837, 838, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines]; see People v Gillotti, 23 NY3d 841, 861; People v LaPorte, 119 AD3d 758; People v Wyatt, 89 AD3d 112, 119). Here, the Supreme Court properly determined that the People presented clear and convincing evidence of aggravating factors not adequately taken into account by the Guidelines "which tend [] to establish a higher likelihood of reoffense or danger to the community" (People v Wyatt, 89 AD3d at 121). Upon determining the existence of these aggravating factors, the Supreme Court providently exercised its discretion in granting the People's application for an upward departure (see People v Gillotti, 23 NY3d at 861; People v Wyatt, 89 AD3d at 123). Accordingly, the defendant was properly designated a level two sex offender.
RIVERA, J.P., SGROI, MILLER and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


