

People v Sanderline (2016 NY Slip Op 06070)





People v Sanderline


2016 NY Slip Op 06070


Decided on September 21, 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 September 21, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2015-02746

[*1]People of State of New York, respondent,
vJohn E. Sanderline, appellant.


Robert C. Mitchell, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Thomas Constant of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated February 25, 2015, 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.
An upward departure from the presumptive risk level is permitted only if the court determines "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 (hereinafter SORA)] guidelines" (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 DeWoody, 127 AD3d 831, 831-832). Here, the County Court properly determined that the People presented clear and convincing evidence of aggravating factors not adequately taken into account by the Guidelines (see People v Jackson, 139 AD3d 1031; People v DeDona, 102 AD3d 58, 69). Upon making that determination, the court providently exercised its discretion in granting the People's application for an upward departure (see People v Wyatt, 89 AD3d 112, 123). Accordingly, the defendant was properly designated a level two sex offender.
LEVENTHAL, J.P., ROMAN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


