SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1044 

KA 15-00727 

PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DONALD E. GIFFORD, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Francis

A. Affronti, J.), entered March 23, 2015. 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: Defendant appeals from an order determining that he

is a level three risk pursuant to the Sex Offender Registration Act

([SORA] Correction Law § 168 et seq.). The Board of Examiners of Sex

Offenders (Board) assessed a score of 95 points against defendant,

making him a presumptive level two risk, but recommended an upward

departure to a level three risk on the ground that the risk assessment

instrument did not adequately capture the totality of defendant’s

prior offending behaviors, which show a clear pattern of sexual

offending behaviors toward young adolescent females, and which

continued despite prior detection and sanctions. At the SORA hearing,

the People requested that Supreme Court assess an additional 20 points

under risk factor 7, for defendant’s relationship with the victim (see

Sex Offender Registration Act: Risk Assessment Guidelines and

Commentary [Guidelines], at 12 [2006]). The court granted the

People’s request and, alternatively, agreed with the Board that an

upward departure was warranted in any event.

Contrary to defendant’s contention, we conclude that the court

properly determined that the People established by the requisite clear

and convincing evidence that defendant established a relationship with

the 14-year-old victim for the primary purpose of victimization (see

People v Washington, 91 AD3d 1277, 1277, lv denied 19 NY3d 801; cf.

People v Izzo, 26 NY3d 999, 1003), and thus that 20 points should be

assessed under risk factor seven, resulting in a score of 115, a
-2- 1044 

KA 15-00727 

presumptive level three risk (see Guidelines, at 3). The People

established that the victim was unknown to the 26-year-old defendant

until he “revved” the engine of his car while the victim was walking

nearby, and the victim then approached defendant, spoke with him, and

told him her age. The People further established that defendant and

the victim engaged in sexual relations for a period of several months,

beginning one week after they met; that those encounters occurred

outside; and that defendant was in an age-appropriate relationship

with another person during that time period. Thus, “the record

supports the determination of the court that defendant’s primary

purpose in establishing the relationship with the [14]-year-old girl

was for the purpose of victimizing her” (Washington, 91 AD3d at 1277).

In any event, contrary to defendant’s further contention, the

court did not abuse its discretion in determining, alternatively, that

an upward departure was warranted (see People v Duryee, 130 AD3d 1487,

1488). The court properly determined that the alleged aggravating

circumstances were not adequately taken into account by the guidelines

(see People v Gillotti, 23 NY3d 841, 861), and that the People met

their burden of “establishing that the alleged aggravating . . .

circumstances actually exist” (id.). The People established that

defendant was previously convicted of endangering the welfare of a

child after he engaged in sexual behavior with a child less than 17

years old, and that, while defendant was on probation for that

offense, a nude 16-year-old girl was found in the trunk of his car. 

We also conclude that the court properly determined that, based on the

totality of the circumstances, defendant poses a “risk of sexual

recidivism” and an upward departure to a level three risk was

warranted (id.; see People v Inskeep, 91 AD3d 1335, 1335). 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court