Opinion
3620, 58534/10.
04-04-2017
The PEOPLE of the State of New York, Respondent, v. Eric BROWN, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Susan Epstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Susan Epstein of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, MOSKOWITZ, GISCHE, KAPNICK, JJ.
Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered May 11, 2011, which adjudicated defendant a level two predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously modified, on the law, to the extent of vacating the predicate sex offender designation, and otherwise affirmed, without costs.
The record supports the court's discretionary upward departure to level two (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). There was clear and convincing evidence to establish aggravating factors that were not otherwise adequately accounted for by the risk assessment instrument, including defendant's pattern of predatory conduct, and his history of poor compliance with supervision, including multiple parole violations and a conviction for failing to register as a sex offender (see e.g. People Solis, 143 A.D.3d 585, 38 N.Y.S.3d 901 [1st Dept.2016], lv. denied 28 N.Y.3d 912, 2017 WL 79637 [2017] ). However, as the People concede, defendant did not qualify as a predicate sex offender.