People v. Wagers

Summary

The Appellate Division, Second Department, affirmed an amended order designating Walter Wagers a level three sex offender under the Sex Offender Registration Act. The court upheld the assessment of risk-factor points and the upward departure from a presumptive level two designation, citing diagnostic impressions, impulsivity, sexual preoccupation, and similar conduct involving another victim. The court also upheld denial of the defendant’s request for a downward departure.

Holdings

1. The court deemed the notice of appeal from the February 2, 2024 order to be a premature notice of appeal from the September 2, 2025 amended order.
2. The County Court properly assessed points under risk factor 7 because the People established by clear and convincing evidence that the victim was a stranger to the defendant and that the relationship was established primarily for victimization.
3. The County Court properly assessed points under risk factor 8 based on the defendant's age when he first exchanged sexually explicit messages and photographs with the 15-year-old victim in connection with the offense.
4. The County Court did not apply an automatic override to designate the defendant a presumptive level three offender.
5. The County Court providently exercised its discretion in granting the People's application for an upward departure from presumptive risk level two to level three.
6. The defendant failed to establish entitlement to a downward departure because he did not prove by a preponderance of the evidence an appropriate mitigating factor not adequately accounted for by the Guidelines.

Questions Presented

1. Whether the County Court properly assessed points under SORA risk factors 7 and 8.
2. Whether the County Court improperly applied an automatic override to designate the defendant a presumptive level three offender.
3. Whether the People established aggravating factors not adequately accounted for by the SORA Guidelines to justify an upward departure from presumptive risk level two to level three.
4. Whether the defendant established a mitigating factor not adequately accounted for by the Guidelines to justify a downward departure to level one.
5. Whether the notice of appeal from the earlier order could be deemed a premature notice of appeal from the amended order.

Disposition

affirmed