Opinion
15816 SCI No. 681/15 Case No. 2019-1877
04-28-2022
The PEOPLE of the State of New York, Respondent, v. Luis FRANCES, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Falicia A. Yancey of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Falicia A. Yancey of counsel), for respondent.
Gische, J.P., Webber, Friedman, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 8, 2019, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6C), unanimously affirmed, without costs.
The court correctly assessed 30 points under the risk factor for the victim's age, based on its determination that the victim's age was 10 or less. That finding was supported by clear and convincing evidence. While the superior court information only charged defendant with conduct that occurred in November 2014, when the victim was 12 years old, the record contained reliable evidence that defendant first sexually abused the victim before her 11th birthday. The criminal complaint reflected the victim's statement that defendant first sexually abused her around the time of her eighth birthday, and defendant stated in a videotaped statement that "the first time was about two years ago," an admission that the abuse began when the victim was 10 years old. The conduct that occurred when the victim was 10 or under was part of the underlying disposition, and in assessing points regarding the current offense, the court was not limited to the offense of conviction (see People v. Sincerbeaux, 27 N.Y.3d 683, 687–688, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ).