People v. Padin , 995 N.Y.S.2d 229 ( 2014 )

People v Padin (2014 NY Slip Op 07486)

People v Padin

2014 NY Slip Op 07486

Decided on November 5, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 5, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SANDRA L. SGROI
ROBERT J. MILLER
BETSY BARROS, JJ.

2013-10806

[*1]People of State of New York, respondent,

v

Wilmer Padin, appellant.

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated November 13, 2013, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

"A court may exercise its discretion and depart upward from the presumptive risk level where it concludes 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'" (People v Richardson, 101 AD3d 837, 838, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). " The People must prove the facts in support of the aggravating factor by clear and convincing evidence'" (People v Richardson, 101 AD3d at 837-838, quoting People v Wyatt, 89 AD3d 112, 123). Here, in light of the extreme brutality and violence of the defendant's conduct in the commission of the underlying crime, there existed an aggravating factor which is not otherwise collectively taken into account by the guidelines, which tended to establish a higher likelihood of reoffense or danger to the community and, thus, the County Court providently exercised its discretion in granting the People's application for an upward departure (see People v Mantilla, 70 AD3d 477, 478; People v Ferrer, 35 AD3d 297).

CHAMBERS, J.P., SGROI, MILLER and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court