People v Simmons (2014 NY Slip Op 06869)
People v Simmons
2014 NY Slip Op 06869
Decided on October 9, 2014
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 9, 2014Tom, J.P., Friedman, Feinman, Gische, Kapnick, JJ.


13136 1954/08

[*1] The People of the State of New York, Respondent,
vNikko Simmons, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jill K. Sanders of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about April 25, 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.
Defendant was properly assessed 30 points for being armed with a dangerous instrument at the time of the underlying sex crime (see People v Pettigrew, 14 NY3d 406, 408-409 [2010]). Defendant's other challenges to the court's assessment of points are unavailing, except that we find that the assessment for defendant's criminal history should have been 15 points. In any event, the record supports the court's alternative finding that even if defendant's point score was only at level two, a discretionary upward departure was warranted, particularly in light of the heinous nature of the underlying crime (see e.g. People v Guasp, 95 AD3d 608 [1st Dept 2012], lv denied 19 NY3d 812 [2012]). Likewise, the court properly exercised its discretion when it declined to grant a downward departure.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 9, 2014
CLERK


