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

1044
KA 15-00727
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD E. GIFFORD, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Francis
A. Affronti, J.), entered March 23, 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: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). The Board of Examiners of Sex
Offenders (Board) assessed a score of 95 points against defendant,
making him a presumptive level two risk, but recommended an upward
departure to a level three risk on the ground that the risk assessment
instrument did not adequately capture the totality of defendant’s
prior offending behaviors, which show a clear pattern of sexual
offending behaviors toward young adolescent females, and which
continued despite prior detection and sanctions. At the SORA hearing,
the People requested that Supreme Court assess an additional 20 points
under risk factor 7, for defendant’s relationship with the victim (see
Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary [Guidelines], at 12 [2006]). The court granted the
People’s request and, alternatively, agreed with the Board that an
upward departure was warranted in any event.

     Contrary to defendant’s contention, we conclude that the court
properly determined that the People established by the requisite clear
and convincing evidence that defendant established a relationship with
the 14-year-old victim for the primary purpose of victimization (see
People v Washington, 91 AD3d 1277, 1277, lv denied 19 NY3d 801; cf.
People v Izzo, 26 NY3d 999, 1003), and thus that 20 points should be
assessed under risk factor seven, resulting in a score of 115, a
                                 -2-                          1044
                                                         KA 15-00727

presumptive level three risk (see Guidelines, at 3). The People
established that the victim was unknown to the 26-year-old defendant
until he “revved” the engine of his car while the victim was walking
nearby, and the victim then approached defendant, spoke with him, and
told him her age. The People further established that defendant and
the victim engaged in sexual relations for a period of several months,
beginning one week after they met; that those encounters occurred
outside; and that defendant was in an age-appropriate relationship
with another person during that time period. Thus, “the record
supports the determination of the court that defendant’s primary
purpose in establishing the relationship with the [14]-year-old girl
was for the purpose of victimizing her” (Washington, 91 AD3d at 1277).

     In any event, contrary to defendant’s further contention, the
court did not abuse its discretion in determining, alternatively, that
an upward departure was warranted (see People v Duryee, 130 AD3d 1487,
1488). The court properly determined that the alleged aggravating
circumstances were not adequately taken into account by the guidelines
(see People v Gillotti, 23 NY3d 841, 861), and that the People met
their burden of “establishing that the alleged aggravating . . .
circumstances actually exist” (id.). The People established that
defendant was previously convicted of endangering the welfare of a
child after he engaged in sexual behavior with a child less than 17
years old, and that, while defendant was on probation for that
offense, a nude 16-year-old girl was found in the trunk of his car.
We also conclude that the court properly determined that, based on the
totality of the circumstances, defendant poses a “risk of sexual
recidivism” and an upward departure to a level three risk was
warranted (id.; see People v Inskeep, 91 AD3d 1335, 1335).




Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
