People v Shepard, 2017 NY Slip Op 01394 [147 AD3d 1091]

February 22, 2017

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Willie Shepard, Appellant.

Seymour W. James, Jr., New York, NY (Adrienne Gantt of counsel; Emily Chan on the brief), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated February 24, 2015, 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.

Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive risk level two designation, to risk level three. The People demonstrated, by clear and convincing evidence, that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act guidelines and the risk assessment instrument ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]), particularly the threats made by the defendant to the 10-year-old victim if she disclosed the abuse, and the fact that, at the time of the instant offense, the defendant had already been designated a level two offender in connection with a prior sex offense involving similar conduct ( see People v Duryee , 130 AD3d 1487 , 1488 [2015]; People v Faulkner , 122 AD3d 539 [2014]; People v Frosch , 69 AD3d 699 [2010]). Eng, P.J., Hall, Cohen and Connolly, JJ., concur..