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

275
KA 14-00545
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELUID CALDERON, 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 January 31, 2014. The order determined that
defendant is a level two 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 two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that Supreme
Court’s upward departure from his presumptive classification as a
level one risk to a level two risk is not supported by clear and
convincing evidence. Contrary to defendant’s contention, we conclude
that the People presented “the requisite clear and convincing evidence
‘that there exists an aggravating . . . factor of a kind, or to a
degree, not otherwise adequately taken into account by the [risk
assessment] guidelines’ ” (People v McCollum, 41 AD3d 1187, 1188, lv
denied 9 NY3d 807; see Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 4 [2006]). It is undisputed that, at
the time of his plea of guilty to criminal sexual act in the first
degree (Penal Law § 130.50 [4]), defendant also pleaded guilty to an
unrelated charge of assault in the second degree (§ 120.05 [2]).
Defendant was not assessed any points under the risk assessment
instrument for a prior violent felony. A concurrent conviction may
provide the basis for an upward departure if it is “indicative that
the offender poses an increased risk to public safety” (Risk
Assessment Guidelines and Commentary, at 14; see People v Becker, 120
AD3d 846, 847, lv denied 24 NY3d 908; People v Ryan, 96 AD3d 1692,
1693, lv dismissed 20 NY3d 929), and, under the circumstances
presented, we conclude that the court did not err in granting the
People’s request for an upward departure from a level one risk to a
                                 -2-                           275
                                                         KA 14-00545

level two risk (see generally Ryan, 96 AD3d at 1693; People v Lowery,
93 AD3d 1269, 1271, lv denied 19 NY3d 807).




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
