Opinion
7496 Ind. 3092/00 6271/00
10-30-2018
The PEOPLE of the State of New York, Respondent, v. Alberto BENVENUTTI, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Meghan Callagee O'Brien of counsel), for respondent.
Sweeny, J.P., Mazzarelli, Kahn, Oing, Singh, JJ.
Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about May 18, 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 record supports the court's discretionary upward departure (see People v. Gillotti, 23 N.Y.3d 841, 861–62, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Clear and convincing evidence established aggravating factors that were not adequately taken into account in the risk assessment instruments. Defendant committed two egregious sexual assaults against strangers, demonstrating a pattern of predatory conduct indicative of sexual recidivism (see e. g. People v. Roman, 143 A.D.3d 476, 477, 38 N.Y.S.3d 430 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 53618 [2017] ). The mitigating factors cited by defendant, such as rehabilitation while incarcerated, were adequately accounted for by the risk assessment instruments (see People v. Watson, 112 A.D.3d 501, 503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014] ), and in any event did not outweigh the aggravating factors.