

People v Diaz (2017 NY Slip Op 04868)





People v Diaz


2017 NY Slip Op 04868


Decided on June 14, 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 14, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
MARK C. DILLON
SHERI S. ROMAN
VALERIE BRATHWAITE NELSON, JJ.


2016-07863
2016-11795

[*1]People of State of New York, respondent,
vBrian Diaz, appellant.


Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Grant D. O'Donnell and Steven A. Bender of counsel), for respondent.

DECISION & ORDER
Appeals by the defendant from (1) an order of the Supreme Court, Westchester County (Cacace, J.), entered May 17, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C under Superior Court Information No. 15-831, and (2) an order of the same court, also entered May 17, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C under Superior Court Information No. 15-833.
ORDERED that the orders are affirmed, without costs or disbursements.
The defendant contends that both orders appealed from should be reversed on the ground that the Supreme Court should not have granted the People's application for an upward departure from his presumptive risk level.
An upward departure from the presumptive risk level is permitted only if the court determines, upon clear and convincing evidence, "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] guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter SORA Guidelines]; see People v Gillotti, 23 NY3d 841, 853; People v Sanderline, 142 AD3d 1061, 1061; People v Manougian, 132 AD3d 746, 746). Here, contrary to the defendant's contention, the Supreme Court properly determined that the People presented clear and convincing evidence of an aggravating factor not adequately taken into account by the SORA Guidelines, namely, his commission of a concurrent offense (see People v Scales, 134 AD3d 790, 792; People v Amin, 128 AD3d 785, 786). Under the circumstances, the court providently exercised its discretion in granting the People's application for an upward departure (see People v Gillotti, 23 NY3d at 861). Accordingly, the defendant was properly designated a level three sex offender.
MASTRO, J.P., DILLON, ROMAN and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


