People v. Rodriguez

128 A.D.3d 603, 9 N.Y.S.3d 268

Opinion

Order, Supreme Court, Bronx County (John S. Moore, J.), entered on or about November 18, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court’s upward departure was supported by clear and convincing evidence establishing aggravating factors that were not adequately taken into account by the risk assessment instrument. First, the assessment of points for the victim’s age being under 11 did not sufficiently reflect the aggravating factor of the victim being only five years old (see People v Mantilla, 70 AD3d 477, 478 [1st Dept 2010], lv denied 15 NY3d 706 [2010]). Second, defendant made a strange and disturbing statement in a presentence interview, alleging that the five-year-old child invited defendant’s sexual conduct, and implying that defendant was justified in accepting the purported invitation. Such a statement evinces a state of mind that poses a danger to children. This statement was both a proper basis for an assessment of points under the risk factor for failing to accept responsibility (see People v Yomtov, 105 AD3d 422, 422 [1st Dept 2013], lv denied 21 NY3d 858 [2013]), and a further basis, as cited by the court, for the upward departure because its egregiousness was not adequately taken into account. Concur — Tom, J.P., Friedman, Sweeny, Saxe and Clark, JJ.