Upward Departure in SORA Proceeding Affirmed

The Third Department affirmed County Court’s upward adjustment of defendant’s sex offender status from a presumptive level I to a level III.  Defendant had pled guilty to a course of sexual conduct with a young girl entrusted to his care spanning five years:

“An upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence” … .  The circumstances underlying these charges as well as defendant’s past misconduct may be considered within the context of this proceeding … .  Here, additional factors established by the record, not adequately taken into account by the guidelines, included defendant’s disregard and abuse of other children even younger than the victim who were also entrusted to his care, his mental instabilities, and the repeated and lengthy nature of his conduct toward the victim.  Accordingly, we find that the record sufficiently supports County Court’s upward departure from the presumptive risk level… .  People v Muirhead, 511847, 3rd Dept 10-31-13