People v. Yomtov

105 A.D.3d 422, 961 N.Y.S.2d 775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (John Cataldo, J.), entered on or about December 18, 2008, which adjudicated defendant a level two sexually violent offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 10 points under the risk factor for failing to accept responsibility. Defendant made efforts to shift blame to the child victim that evinced a lack of genuine acceptance of responsibility (see People v Teagle, 64 AD3d 549 [2d Dept 2009]; People v Baker, 57 AD3d 1472 [4th Dept 2008], lv denied 12 NY3d 706 [2009]).

In any event, the record supports the court’s determination that, regardless of whether defendant’s correct point score should be 65 or 75, an upward departure to level two is warranted, based on the seriousness of defendant’s course of conduct toward a child and of the surrounding circumstances {see e.g. People v Mantilla, 70 AD3d 477, 478 [2010], lv denied 15 NY3d 706 [2010]). This egregiousness of defendant’s behavior was an “aggravating . . . factor of a kind, or to a degree, that [was] otherwise not adequately taken into account by the guidelines” (People v Johnson, 11 NY3d 416, 421 [2008]).

Concur—Friedman, J.E, Sweeny, Renwick, Richter and Román, JJ.