People v. Goodwin

126 A.D.3d 610, 3 N.Y.S.3d 598

Opinion

Order, Supreme Court, Bronx County (Ethan Greenberg, J.), entered on or about April 16, 2012, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Each of the point assessments at issue was supported by clear and convincing evidence. The assessment for being armed with a dangerous instrument was supported by evidence that the victim felt and saw an apparent firearm (see People v Pettigrew, 14 NY3d 406, 409 [2010]). The evidence supported an assessment for the victim being under the age of 17, regardless of any paperwork discrepancy as to whether she was 15 or 16. Defendant’s challenge to the assessment for a history of drug or alcohol abuse was expressly waived, and is without merit in any event.

In addition, the record supports the court’s alternative finding that even if defendant’s point score was only at level two, a discretionary upward departure was warranted, because the risk assessment instrument did not adequately account for the seriousness of the underlying crime and defendant’s overall criminal history.

Concur — Tom, J.P., DeGrasse, ManzanetDaniels and Clark, JJ.

Motion to strike brief denied.