

People v Capellan (2016 NY Slip Op 08949)





People v Capellan


2016 NY Slip Op 08949


Decided on December 29, 2016


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 on December 29, 2016

Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels, Feinman, JJ.


1673/11 2569 2568 2567 2566

[*1]The People of the State of New York, Respondent,
vVictor Capellan, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan P. Mansell of counsel), for respondent.

Order, Supreme Court, Bronx County (Patricia DiMango, J.), entered December 10, 2013, 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 court's discretionary upward departure was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument (see e.g. People v Sherard, 73 AD3d 537 [1st Dept 2010], lv denied 15 NY3d 707 [2010]). Contrary to defendant's argument, the court did not rely solely on defendant's psychiatric illness. Instead, it cited a combination of serious aggravating factors indicative of a grave risk of reoffense, including defendant's threat to the victim of the underlying crime and his boast that he had committed other sex crimes and would continue to commit them. Defendant's argument regarding an alleged overassessment of points under one of the risk factors is unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 29, 2016
CLERK


