Clare J. Degnan, White Plains, NY (Venessa Melly of counsel), for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Jennifer Spencer and Laurie Sapakoff of counsel), for respondent.
Opinion
Appeals by the defendant from (1) a decision of the Supreme Court, Westchester County (Cacace, J.), dated April 29, 2015, and (2) an order of the same court dated April 28, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the appeal from the decision is dismissed without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court properly assessed 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) following his conviction of promoting an obscene sexual performance by a child (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; People v. Granzeier, 137 A.D.3d 989, 26 N.Y.S.3d 708 ).
Further, the Supreme Court properly determined that the People presented clear and convincing evidence of aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary which tend to establish a higher likelihood of reoffense or danger to the community (see People v. Wyatt, 89 A.D.3d 112, 121, 931 N.Y.S.2d 85 ). Upon making such a determination, the Supreme Court
providently exercised its discretion in granting the People's application for an upward departure (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt, 89 A.D.3d at 123, 931 N.Y.S.2d 85 ). Accordingly, the defendant was properly designated a level three sex offender.
MASTRO, J.P., RIVERA, AUSTIN and LaSALLE, JJ., concur.