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

870
KA 14-00928
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM J. MOORE, DEFENDANT-APPELLANT.


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), dated May 8, 2014. 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
(Correction Law § 168 et seq.). Based upon a total risk factor score
of 85 points on the risk assessment instrument, defendant was
presumptively classified a level two risk. In a prior appeal, we
reversed an order determining that defendant was a level three risk
based on the automatic override for a prior felony conviction of a sex
crime (see Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary at 3-4 [2006]), and we vacated the risk level
determination and remitted the matter to County Court for further
proceedings in compliance with Correction Law § 168-n (3) (People v
Moore, 115 AD3d 1360). Upon remittal, the court again determined that
defendant is a level three risk.

     Contrary to defendant’s contention, “[t]he court’s discretionary
upward departure [to a level three risk] was based on clear and
convincing evidence of aggravating factors to a degree not taken into
account by the risk assessment instrument” (People v Sherard, 73 AD3d
537, 537, lv denied 15 NY3d 707). The court properly relied upon
factors that, “as a matter of law, . . . tend[ed] to establish a
higher likelihood of reoffense or danger to the community” (People v
Wyatt, 89 AD3d 112, 123, lv denied 18 NY3d 803), including defendant’s
prior felony conviction of a sex crime, his difficulty controlling his
impulses, and his victimization of young girls over an extended period
of time (see People v Vaillancourt, 112 AD3d 1375, 1376, lv denied 22
                          -2-                  870
                                         KA 14-00928

NY3d 864).




Entered:   July 2, 2015         Frances E. Cafarell
                                Clerk of the Court
