People v. Fultz

Order, Supreme *459 Court, Bronx County (John S. Moore, J.), entered on or about January 24, 2012, adjudicating defendant a level three sexually violent felony offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs. The record supports the court’s discretionary upward departure, based on facts established by clear and convincing evidence. “[T]he level suggested by the [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation” (People v Mingo, 12 NY3d 563, 568 n 2 [2009], see also People v Johnson, 11 NY3d 416, 421 [2008]). Here, even though defendant was assessed points under the risk factors for use of violence, sexual contact and the fact that the victim was a stranger, the RAI did not adequately account for the “extreme egregiousness” (People v Ratcliff, 107 AD3d 476, 476 [1st Dept 2013], lv denied 22 NY3d 852 [2013]) of defendant’s conduct, which involved a brutal home-invasion gang rape (see e.g. People v Guasp, 95 AD3d 608 [1st Dept 2012], lv denied 19 NY3d 812 [2012]). Concur — Mazzarelli, J.E, Sweeny, Moskowitz, Richter and Feinman, JJ.