People v. Grassi

123 A.D.3d 602, 998 N.Y.S.2d 369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2014
• Docket: 13808 4682/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about January 4, 2013, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed defendant 20 points under the risk factor relating to relationship with the victim. Defendant and the victim were strangers, notwithstanding their brief Internet exchanges, and to the extent there was any relationship, defendant established it for the purpose of victimization (see People v Tejada, 51 AD3d 472 [1st Dept 2008]).

Regardless of whether the court properly assessed points under the relationship with victim factor, the record supports the court’s alternative finding that an upward departure was warranted. Even without the points disputed on appeal, defendant’s point score is 105, which is nearly enough for a level three adjudication. The risk assessment instrument did not adequately account for the significant risk of recidivism indicated by defendant’s failure to control his behavior notwithstanding his sentence of probation and level one adjudication following his previous sex crime conviction, as well as his pattern of behavior toward underage girls.

Concur — Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman and Gische, JJ.