People v. Nicholas P.

2017 NY Slip Op 4568, 151 A.D.3d 500, 53 N.Y.S.3d 543

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2017
• Docket: 4221 1725/02
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered August 11, 2016, 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.

Initially, we reject the People’s argument that the appeal should be dismissed on the ground that defendant has been deported (see People v Edwards, 117 AD3d 418 [1st Dept 2014]).

The court’s upward departure to level three was supported by clear and convincing evidence of an aggravating factor not adequately taken into account by the risk assessment instru ment, and which outweighed the mitigating factors cited by defendant (see People v Gillotti, 23 NY3d 841, 861-862 [2014]). While defendant was incarcerated for the underlying offense, he conspired to murder the victim, her mother, and her brother, in order to prevent them from testifying about his sexual abuse. This supported an inference of defendant’s increased risk of sexual recidivism (see People v Bynum, 140 AD3d 501 [1st Dept 2016]; People v Winfield, 122 AD3d 488 [1st Dept 2014], lv denied 24 NY3d 917 [2015]; People v O’Flaherty, 23 AD3d 237 [1st Dept 2005], lv denied 6 NY3d 705 [2006]).

Concur—Friedman, J.P., Gische, Kapnick, Kahn and Gesmer, JJ.