State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 28, 2016 518911 

________________________________

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