ROSE, J.
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Bittany L. Grome of counsel), for respondent.
Opinion
ROSE, J.
Appeal from an order of the County Court of Albany County (Herrick, J.), entered February 24, 2014, which classified defendant as a risk level III sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.
Defendant lured a young woman to his restaurant under the auspices of offering her employment as a waitress and then proceeded to physically subdue her with rope, rape her and force her to perform oral sex on him while holding a gun to her head. As a result, he was convicted of, among other crimes, rape in the first degree, and thereafter he was sentenced to 12 ½ to 25 years in prison. Prior to his release from prison, the Board of Examiners of Sex Offenders evaluated defendant and prepared a risk assessment instrument (hereinafter RAI), which recommended that he be classified as a risk level II sex offender and a sexually violent offender under the Sex Offender Registration Act (see Correction Law art 6–C). Following a hearing, County Court found that defendant was a sexually violent offender and was presumptively classified as a risk level II sex offender under the RAI, but granted the People's application for an upward departure based upon the violent and egregious nature of defendant's conduct that was not reflected in the RAI. Consequently, County Court classified defendant as a risk level III sex offender and a sexually violent offender. Defendant now appeals.
Initially, we note that an “[u]pward departure from the presumptive risk level is justified when an aggravating factor, not adequately taken into account by the risk assessment guidelines, is established by clear and convincing evidence” (People v. Becker, 120 A.D.3d 846, 847, 990 N.Y.S.2d 743 2014, lv. denied 24 N.Y.3d 908, 2014 WL 5437028 2014 [internal quotation marks and citations omitted]; see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 2014; People v. Padin, 122 A.D.3d 600, 600, 995 N.Y.S.2d 229 2014, lv. denied 24 N.Y.3d 913, 2015 WL 145045 2015 ). Notably, upward departures have been upheld where, as here, the criminal activity was particularly egregious and, therefore, not properly taken into account by the RAI (see e.g. People v. Suber, 91 A.D.3d 619, 620, 935 N.Y.S.2d 898 2012, lv. denied 19 N.Y.3d 801, 2012 WL 1504727 2012; People v. Wasley, 73 A.D.3d 1400, 1401, 902 N.Y.S.2d 686 2010; People v. Joslyn, 27 A.D.3d 1033, 1034–1035, 811 N.Y.S.2d 807 2006 ). Although defendant was given 30 points under the RAI for the violent nature
of the crimes involving the use of a weapon, the RAI failed to reflect the premeditated nature of defendant's conduct or the deceitful and manipulative manner in which the victim was drawn to the crime scene. The RAI also did not take into account defendant's depraved and erratic behavior during the
ordeal as related by the victim during her grand jury testimony. Inasmuch as we agree that the foregoing warranted an upward departure, we find no reason to disturb County Court's classification of defendant as a risk level III sex offender. Defendant's remaining argument that he should have been classified as a risk level I sex offender is unpreserved and, in any event, without merit.
ORDERED that the order is affirmed, without costs.
PETERS, P.J., GARRY and DEVINE, JJ., concur.