

People v Roman (2016 NY Slip Op 06548)





People v Roman


2016 NY Slip Op 06548


Decided on October 6, 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 October 6, 2016

Richter, J.P., Manzanet-Daniels, Feinman, Kapnick, JJ.


1836 616/10

[*1]The People of the State of New York, Respondent,
vBenjamin Roman, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.

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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 6, 2016
CLERK


