

People v Allen (2017 NY Slip Op 05250)





People v Allen


2017 NY Slip Op 05250


Decided on June 28, 2017


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 June 28, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
SHERI S. ROMAN
SANDRA L. SGROI, JJ.


2015-11186

[*1]People of State of New York, respondent,
vDarrin Allen, appellant.


Seymour W. James, Jr., New York, NY (Paul Wiener of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Richmond County (Mattei, J.), dated October 22, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the People's request for an upward departure from the presumptive risk level two designation, to risk level three. The People demonstrated, by clear and convincing evidence, the existence of an aggravating factor that was not adequately taken into account by the Sex Offender Registration Act guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Gillotti, 23 NY3d 841, 861). The proof presented at the hearing established, inter alia, that the defendant was convicted in Virginia of failing to register as a sex offender, which justified the court's determination to grant the People's request for an upward departure (see People v Boyd, 121 AD3d 658, 658-659; People v Faver, 113 AD3d 662, 663; People v Porter, 74 AD3d 767, 767-768; People v Turpeau, 68 AD3d 1083; People v Walker, 67 AD3d 760, 761).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
MASTRO, J.P., RIVERA, ROMAN and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


