Opinion
12-29-2016
The PEOPLE of the State of New York, Respondent, v. Victor CAPELLAN, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Natalie Rea of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Ryan P. Mansell of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.Darcel D. Clark, District Attorney, Bronx (Ryan P. Mansell of counsel), for respondent.
Order, Supreme Court, Bronx County (Patricia DiMango, J.), entered December 10, 2013, 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 court's discretionary upward departure was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument (see e.g. People v. Sherard, 73 A.D.3d 537, 903 N.Y.S.2d 3 [1st Dept.2010], lv. denied 15 N.Y.3d 707, 2010 WL 3583171 [2010] ). Contrary to defendant's argument, the court did not rely solely on defendant's psychiatric illness. Instead, it cited a combination of serious aggravating factors indicative of a grave risk of reoffense, including defendant's threat to the victim of the underlying crime and his boast that he had committed other sex crimes and would continue to commit them. Defendant's argument regarding an alleged overassessment of points under one of the risk factors is unavailing.
MAZZARELLI, J.P., SWEENY, RICHTER, MANZANET–DANIELS, FEINMAN, JJ., concur.