People v. Diaz, 2017 NY Slip Op 4868 (N.Y. App. Div. 2017). · Go Syfert
People v. Diaz, 2017 NY Slip Op 4868 (N.Y. App. Div. 2017). Cases Citing This Book View Copy Cite
10 citation events (10 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Hunt (nyappdiv, 2018-02-14)
Top citers, strongest first. 1 distinct citer. How cited ↗
discussed Cited "see" People v. Hunt
N.Y. App. Div. · 2018 · signal: see · confidence high
While a defendant may waive the right to be present at the hearing, in order to establish a valid waiver it must be shown, inter alia, that "the defendant was advised of the hearing date, of his right to be present, and that the hearing would be conducted in his absence" ( People v Brooks , 308 AD2d 99, 106 ; see People v Jenkins , 151 AD3d 891, 892 ; People v Ginyard , 101 AD3d 1095 ; People v Jackson , 94 AD3d 961 ; People v Porter , 37 AD3d at 797 ).
The People of the State of New York, Respondent,
v.
Brian Diaz, Appellant
2016-07863.
Appellate Division of the Supreme Court of the State of New York.
Jun 14, 2017.
2017 NY Slip Op 4868
Mastro, Dillon, Roman, Nelson.
Cited by 7 opinions  |  Published

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 [2014]; People v Sanderline, 142 AD3d 1061, 1061 [2016]; People v Manougian, 132 AD3d 746, 746 [2015]). 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 [2015]; People v Amin, 128 AD3d 785, 786 [2015]). 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.