| People v Terry |
| 2025 NY Slip Op 05362 [242 AD3d 1522] |
| October 3, 2025 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Lamont Terry, Appellant. |
Hayden M. Dadd, Conflict Defender, Geneseo (Bradley E. Keem of counsel), for defendant-appellant.
Ashley Williams, District Attorney, Geneseo, for respondent.
Crimes
- Sex Offenders
- Sex Offender Registration Act
- Upward Departure
Appeal from an order of the Livingston County Court (Jennifer M. Noto, J.), dated July 18, 2024. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in granting an upward departure from his presumptive classification as a level one risk to a level three risk. We reject that contention. " 'The court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument' " (People v Tidd, 128 AD3d 1537, 1537 [4th Dept 2015], lv denied 25 NY3d 913 [2015]; see People v Swartz, 216 AD3d 1426, 1428 [4th Dept 2023], lv denied 40 NY3d 906 [2023]; People v Sczerbaniewicz, 126 AD3d 1348, 1349 [4th Dept 2015]). As the court determined, an upward departure was warranted based on crimes defendant committed after his release from prison on the qualifying offense, including failing to register as a sex offender in North Carolina (see People v Wright, 215 AD3d 1258, 1259-1260 [4th Dept 2023], lv denied 40 NY3d 904 [2023]; People v Perez, 158 AD3d 1070, 1071 [4th Dept 2018], lv denied 31 NY3d 905 [2018]).
Defendant's subsequent criminal history indicates that he "poses an increased risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]; see generally People v Milks, 28 AD3d 1163, 1164 [4th Dept 2006]), and we cannot conclude that the court, in weighing the aggravating and mitigating factors, abused its discretion in granting a two-level upward departure (see generally People v Gillotti, 23 NY3d 841, 861 [2014]). Present—Lindley, J.P., Montour, Greenwood, Nowak and Keane, JJ.