SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
760
KA 12-00879
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DAVID BOTINDARI, DEFENDANT-APPELLANT.
WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (HEATHER M. DESTEFANO OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Cayuga County Court (Mark H.
Fandrich, A.J.), entered November 14, 2011. 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’s
upward departure from his presumptive classification as a level two
risk is not supported by clear and convincing evidence. We reject
that contention. “A court may make an upward departure from a
presumptive risk level when, after consideration of the indicated
factors . . . [,] there exists an aggravating . . . factor of a kind,
or to a degree, not otherwise adequately taken into account by the
[risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464
[internal quotation marks omitted]; see People v Wheeler, 59 AD3d
1007, 1008, lv denied 12 NY3d 711). Here, there is clear and
convincing evidence that defendant committed a series of sexual
offenses against his girlfriend’s daughter over the course of more
than seven years, beginning when the victim was five years old.
Contrary to defendant’s contention, the court properly concluded that
the risk assessment instrument prepared by the Board of Examiners of
Sex Offenders did not adequately take into account the nature and
duration of the sexual abuse, including the victim’s young age when
the abuse began and defendant’s exploitation of his relationship of
trust with the victim’s family (see People v May, 77 AD3d 1388, 1388;
People v Mantilla, 70 AD3d 477, 478, lv denied 15 NY3d 706; see
generally People v Harris, 50 AD3d 1556, 1557, lv denied 10 NY3d 716;
-2- 760
KA 12-00879
People v Leibach, 39 AD3d 1093, 1094, lv denied 9 NY3d 806).
Entered: June 14, 2013 Frances E. Cafarell
Clerk of the Court