

People v Boyer (2017 NY Slip Op 07553)





People v Boyer


2017 NY Slip Op 07553


Decided on October 31, 2017


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 October 31, 2017

Acosta, P.J., Manzanet-Daniels, Gische, Kapnick, Kahn, JJ.


2028/10 4866A 4866

[*1] The People of the State of New York, Respondent.
vRobert Boyer, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 20, 2012, convicting defendant, upon his plea of guilty, of sexual misconduct, and sentencing him to six years' probation, unanimously affirmed. Order, same court, Justice and date, which adjudicated defendant a level two sex 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 two. In this case, clear and convincing evidence established aggravating factors that were not adequately taken into account by the risk assessment instrument (see People v Gillotti, 23 NY3d 841 [2014]). The egregiousness of defendant's conduct towards a trusting friend, including grabbing her by the neck and committing a forcible rape that required medical treatment, demonstrated defendant's inability to control his behavior (see e.g. People v Ray, 86 AD3d 435 [1st Dept 2011], lv denied 17 NY3d 716 [2011]). These aggravating factors outweighed the mitigating factors cited by defendant.
As to the judgment of conviction, application by defendant's counsel to withdraw is granted (see Anders v California, 386 US 738 [1967]; People v Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this record and agree with defendant's assigned counsel that there are no nonfrivolous points that could be raised on the appeal from the conviction.
Pursuant to CPL 460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within 30 days after service of a copy of this order.
Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 31, 2017
CLERK


