

People v Silvagnoli (2018 NY Slip Op 01024)





People v Silvagnoli


2018 NY Slip Op 01024


Decided on February 13, 2018


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 February 13, 2018

Andrias, J.P., Kapnick, Gesmer, Moulton, JJ.


5679 11970/93

[*1]The People of the State of New York, Respondent,
vAlex Silvagnoli, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Alexis E. Kim of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Megan DeMarco of counsel), for respondent.

Order, Supreme Court, New York County (Bruce Allen, J.), entered on or about November 14, 2014, 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, based on clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for by the risk assessment instrument (see People v Gillotti, 23 NY3d 841, 861—862 [2014]; People v Velasquez, 143 AD3d 583 [1st Dept 2016], lv denied 28 NY3d 914 [2017]). Although defendant was assessed 20 points under risk factor 13 for his conduct while confined, the risk assessment instrument did not adequately take into account the seriousness of his misconduct of a sexual nature toward female correction officers (see e.g. People v Ratcliff, 107 AD3d 476 [1st Dept 2013], lv denied 22 NY3d 852 [2013]). Defendant also displayed a general lack of rehabilitation that demonstrated a risk of reoffense. He served all 21 years of a 7-to-21-year sentence imposed in 1993, and his bad behavior persisted almost to the end of his incarceration.
We have considered and rejected defendant's remaining contentions.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 13, 2018
CLERK


