People v. Maldonado

Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated May 5, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. The defendant contends that, in determining his risk level under the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court improperly granted the People’s application, upon the recommendation of the Board of Examiners of Sex Offenders, for an upward departure to risk level three. A court may exercise its discretion to upwardly depart from the presumptive risk level where “there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registra *715 tion Act: Risk Assessment Guidelines and Commentary at 4 [2006]). The aggravating factor must be proven by clear and convincing evidence (see People v Suber, 91 AD3d 619, 619-620 [2012]; People v Wyatt, 89 AD3d 112, 123 [2011]). Here, the Supreme Court properly considered the brutal and severe nature of the defendant’s conduct toward the complainant as an aggravating factor warranting an upward departure (see People v Suber, 91 AD3d at 619-620; People v Rios, 57 AD3d 501, 502-503 [2008]). Accordingly, the defendant was properly adjudicated a level three sex offender. Skelos, J.R, Leventhal, Hinds-Radix and Maltese, JJ., concur.