People v. Rosario
This text of 216 A.D.3d 601 (People v. Rosario) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
| People v Rosario |
| 2023 NY Slip Op 02853 |
| Decided on May 30, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: May 30, 2023
Before: Kern, J.P., Friedman, Kennedy, Scarpulla, Pitt-Burke, JJ.
Ind. No. 5543/99 Appeal No. 342 Case No. 2021-03874
v
Jose Rosario, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Dany Greene of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
Order, Supreme Court, New York County (Althea E. Drysdale, J.), entered on or about September 29, 2021, 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 providently exercised its discretion in granting an upward departure to level two (see generally People v Gillotti, 23 NY3d 841, 861 [2014]). Clear and convincing evidence established that defendant committed two prior sex offenses against young female strangers, similar to the underlying offense, which were not accounted for by the risk assessment instrument because those convictions occurred after the conviction in the instant case (see People v Feliciano, 192 AD3d 600 [1st Dept 2021]). Defendant's pattern of offending behavior indicated a significant risk of recidivism, which was not outweighed by the mitigating factors he cites, including his efforts at rehabilitation and his progress in sex offender treatment. Furthermore, defendant was incarcerated up until the time of his SORA hearing and his behavior in custody "is not necessarily indicative of his future conduct while at liberty" (People v James D., 200 AD3d 618, 619 [1st Dept 2021]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: May 30, 2023
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216 A.D.3d 601, 190 N.Y.S.3d 324, 2023 NY Slip Op 02853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rosario-nyappdiv-2023.