Opinion
10-31-2017
The PEOPLE of the State of New York, Respondent. v. Robert 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.
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.
ACOSTA, P.J., MANZANET–DANIELS, GISCHE, KAPNICK, KAHN, JJ.
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 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [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 A.D.3d 435, 926 N.Y.S.2d 290 [1st Dept.2011], lv. denied 17 N.Y.3d 716, 2011 WL 5526456 [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 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 [1967] ; People v. Saunders, 52 A.D.2d 833, 384 N.Y.S.2d 161 [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.