## State of N ew York Su p reme Cou rt, A p p ellate Division Third J u dicial Dep artment Decided and Entered: January 28, 2016 5 18911

________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER FRANCIS AULETA, Appellant.

________________________________ Calendar Date: December 15, 2015 Before: Peters, P.J., Garry, Rose and Devine, JJ.

__________ Sandra M. Colatosti, Albany, for appellant. P. David Soares, District Attorney, Albany (Bittany L. Grome of counsel), for respondent.

__________ 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 121⁄2 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-2- 518911

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 AD3d 846, 847 [2014], lv denied 24 NY3d 908 [2014] [internal quotation marks and citations omitted]; see People v Gillotti, 23 NY3d 841, 861-862 [2014]; People v Padin, 122 AD3d 600, 600 [2014], lv denied 24 NY3d 913 [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 AD3d 619, 620 [2012], lv denied 19 NY3d 801 [2012]; People v Wasley, 73 AD3d 1400, 1401 [2010]; People v Joslyn, 27 AD3d 1033, 1034-1035 [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. Peters, P.J., Garry and Devine, JJ., concur.-3- 518911

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court