At page 1041 Appeal from an order of the Monroe County Court (Frank E Geraci, Jr., J.), entered June 20, 2005. The order determined that defendant is a level three risk…1 citing case
- People v. Lyons, 72 A.D.3d 776 (N.Y. App. Div. 2d Dep't 2010).publishedMoreover, we do not view the remaining circumstances highlighted by the People that are not taken into account by the guidelines as being probative of the issue of the defendant’s “risk of reoffense” (Sex Offender Registration Act: Risk As…
At page 1042 ranted based upon defendant’s prior sex offenses and history of substance abuse, which together indicated that defendant had a high risk to reoffend that was…1 citing case
- People v. Potts, 179 A.D.3d 1536 (N.Y. App. Div. 4th Dep't 2020).publishedWe further conclude that the upward departure was warranted inasmuch as the [*2]aggravating factor establishes an increased risk of sexual recidivism that was not adequately taken into account by the risk assessment instrument ( see Abraha…
v.
George Shattuck
Appeal from an order of the Monroe County Court (Frank E Geraci, Jr., J.), entered June 20, 2005. 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 be and the same hereby is unanimously affirmed without costs.
Memorandum: Defendant contends in his main brief and his pro se supplemental brief that County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject that contention. The court’s upward departure from the presumptive risk level is supported by clear and convincing evidence (see § 168-n [3]; People v Auld, 24 AD3d 1249 [2005], lv denied 6 NY3d 711 [2006]; People v Heichel, 20 AD3d 934, 935 [2005]). “If the risk of a repeat offense is high and there is a threat to the public safety, a level three designation is appropriate” (Heichel, 20 AD3d at 935). Here, an upward departure was war[*1042] ranted based upon defendant’s prior sex offenses and history of substance abuse, which together indicated that defendant had a high risk to reoffend that was not adequately taken into account in the risk assessment instrument (see People v Bottisti, 285 AD2d 841, 842 [2001]). Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Lunn, JJ.