Opinion
11324 Ind. 1376/15
04-02-2020
The PEOPLE of the State of New York, Respondent, v. Antonio CRUZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.
Gische, J.P., Gesmer, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about January 4, 2017, which adjudicated defendant a level three sexually violent predicate sex 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. Clear and convincing evidence established aggravated factors that were not adequately taken into account 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 ). Although defendant was assessed the maximum amount of points for the number and nature of his prior crimes, this did not reflect the seriousness and extent of that history, which included four prior sex offense convictions and was indicative of sexual recidivism (see People v. Roman, 143 A.D.3d 476, 38 N.Y.S.3d 430 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 53618 [2017] ). Moreover, despite having been adjudicated a level three offender on a prior case, and subjected to the requirements of that classification, he nevertheless committed yet another sex crime, resulting in the instant adjudication. This was also predictive of sexual recidivism (see People v. Collins, 127 A.D.3d 568, 8 N.Y.S.3d 97 [1st Dept. 2015], lv denied 26 N.Y.3d 901, 2015 WL 5123379 [2015] ; People v. Faulkner, 122 A.D.3d 539, 997 N.Y.S.2d 410 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 649397 [2015] ).
The mitigating factors that defendant relied upon were adequately taken into account by the risk assessment instrument, and, in any event, were outweighed by the aggravating factors.