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

582
KA 16-00048
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal from an order of the Monroe County Court (Christopher S.
Ciaccio, J.), entered November 10, 2015. The order determined that
defendant is a level three 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 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 NY3d 841, 862).
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 AD3d 1426, 1427-1428).

     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 AD3d 1208, 1209 [internal quotation
marks omitted]). Here, the People established by clear and convincing
                                 -2-                           582
                                                         KA 16-00048

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
AD3d 1348, 1349; see also People v Guyette, 140 AD3d 1555, 1556-1557;
People v Lashway, 66 AD3d 662, 662-663).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
