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

48
KA 15-01103
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MATTHEW SYMONDS, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Livingston County Court (Robert B.
Wiggins, J.), entered March 5, 2015. 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 County Court
erred in granting an upward departure from his presumptive
classification as a level one risk. We reject that contention. It is
well settled that a court may grant an upward departure from a sex
offender’s presumptive risk level when the People establish, by clear
and convincing evidence (see § 168-n [3]; People v Gillotti, 23 NY3d
841, 861-862), the existence of “an aggravating or mitigating factor
of a kind, or to a degree, that is otherwise not adequately taken into
account by the [risk assessment] guidelines” (Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary, at 4
[2006]; see People v Shepard, 103 AD3d 1224, 1224, lv denied 21 NY3d
856; People v Wheeler, 59 AD3d 1007, 1008, lv denied 12 NY3d 711).
Here, there is clear and convincing evidence of “defendant’s
exploitation of his relationship of trust with the victim[ ]” over a
period of more than a year (People v Botindari, 107 AD3d 1607, 1608),
which constituted an aggravating factor of a kind or to a degree not
otherwise taken into account by the risk assessment guidelines (see
People v Mantilla, 70 AD3d 477, 478, lv denied 15 NY3d 706; People v
Hill, 50 AD3d 990, 991, lv denied 11 NY3d 701; People v Ferrer, 35
AD3d 297, 297, lv denied 8 NY3d 807).

Entered:    February 3, 2017                       Frances E. Cafarell
                                                   Clerk of the Court
