People v. Roman

143 A.D.3d 476, 38 N.Y.S.3d 430

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 2016
• Docket: 1836 616/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered March 23, 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.

The record supports the court’s discretionary upward departure to level three. Clear and convincing evidence established aggravating factors that were not adequately taken into account by the risk assessment instrument, including the seriousness of the underlying crime, and the fact that, within a period of five years, defendant committed the underlying crime and two other crimes indicative of sexual recidivism (see e.g. People v Faulkner, 122 AD3d 539 [1st Dept 2014], lv denied 24 NY3d 915 [2015]).

Accordingly, defendant was properly adjudicated a level three offender based on the upward departure, regardless of whether his correct point score is 90, as the court found, or 60, as defendant asserts. In any event, the court correctly assessed points under the risk factor for relationship (strangers) between defendant and the victim, and under the risk factor for failing to accept responsibility.

Concur — Richter, J.P., Manzanet-Daniels, Feinman and Kapnick, JJ.