Opinion
10-20-2016
The PEOPLE of the State of New York, Respondent, v. Francisco VELASQUEZ, 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 Kim of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Milbank Tweed Hadley & McCloy LLP, New York (Alexis Kim of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
SWEENY, J.P., RENWICK, MANZANET–DANIELS, GISCHE, WEBBER, JJ.
Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered January 3, 2013, which adjudicated defendant a level two 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. There was clear and convincing evidence to establish an aggravating factor that was not adequately accounted for by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Defendant's possession of numerous and repellent images of child pornography was sufficiently linked to a risk of reoffense (see People v. Hughes, 71 A.D.3d 579, 579–80, 898 N.Y.S.2d 835 [1st Dept.2010], lv. denied 14 N.Y.3d 713, 2010 WL 2301681 [2010] ). Moreover, the mitigating factors cited by defendant were accounted for in the risk assessment instrument and were outweighed by the seriousness of his conduct. We have considered and rejected defendant's remaining arguments.