People v Fuller

People v Fuller 2007 NY Slip Op 01542 [37 AD3d 689] February 20, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

The People of the State of New York, Respondent,
v
Louis Fuller, Appellant.

—[*1] Stephen J. Pittari, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (John J. Carmody, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

Appeal by the defendant from an order of the County Court, Westchester County (Bellantoni, J.), entered April 18, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant is reclassified as a level two sex offender.

The County Court erred in upwardly departing from the defendant's presumptive risk level two sex offender status and designating him a risk level three sex offender (see Correction Law § 168-a [l]). The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant such an upward departure (see People v Ruddy, 31 AD3d 517 [2006], lv denied 7 NY3d 714 [2006]; People v Guaman, 8 AD3d 545 [2004]).

The defendant's remaining contentions are without merit or need not be reached in light of our determination. Mastro, J.P., Goldstein, Lifson and Carni, JJ., concur. [See 11 Misc 3d 1081(A), 2006 NY Slip Op 50647(U) (2006).]