People v. Rodriguez

People v Rodriguez (2020 NY Slip Op 00238)

People v Rodriguez

2020 NY Slip Op 00238

Decided on January 14, 2020

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 January 14, 2020
Renwick, J.P., Kapnick, Mazzarelli, Webber, JJ.
14007/90 14774/90 10769

Christina A. Swarns, Office of the Appellate Defender, New York (Emma L. Shreefter of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.

Orders, Supreme Court, New York County (Roger S. Hayes, J.), entered on or about October 19, 2017, 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 not adequately taken into account by the risk assessment instruments (see People v Gillotti, 23 NY3d 841, 861-862 [2014]), including the egregiousness of the underlying sex offenses, which demonstrated "a pattern of predatory conduct indicative of sexual recidivism" (People v Benvenutti, 165 AD3d 611, 612 [1st Dept 2018]). In addition, the assessment of points under the risk factor for conduct while confined did not adequately take into account the seriousness of the disciplinary infractions that defendant incurred (see People v Silvagnoli, 158 AD3d 491, 492 [1st Dept], lv denied 31 NY3d 909 [2018]).

The mitigating factors that defendant relies upon were adequately taken into account by the risk assessment instruments, and, in any event, are outweighed by the aggravating factors.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 14, 2020

CLERK