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PEOPLE, res — v. ROBERT BOYER, def-ap

4866-4866A. PEOPLE, res — v. ROBERT BOYER, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for res — Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 20, 2012, convicting defendant, upon his plea of guilty, of sexual misconduct, and sentencing him to six years' probation, unanimously affirmed. Order, same court, Justice and date, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

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4866-4866A. PEOPLE, res — v. ROBERT BOYER, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for res — Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 20, 2012, convicting defendant, upon his plea of guilty, of sexual misconduct, and sentencing him to six years’ probation, unanimously affirmed. Order, same court, Justice and date, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports the court’s discretionary upward departure to level two. In this case, clear and convincing evidence established aggravating factors that were not adequately taken into account by the risk assessment instrument (see People v. Gillotti, 23 NY3d 841 [2014]). The egregiousness of defendant’s conduct towards a trusting friend, including grabbing her by the neck and committing a forcible rape that required medical treatment, demonstrated defendant’s inability to control his behavior (see e.g. People v. Ray, 86 AD3d 435 [1st Dept 2011], lv denied 17 NY3d 716 [2011]). These aggravating factors outweighed the mitigating factors cited by defendant.

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