Opinion
9975 SCID 30156/17
10-01-2019
The PEOPLE of the State of New York, Respondent, v. Donovan CUSHNIE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett, Brooklyn, of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett, Brooklyn, of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Friedman, J.P., Tom, Webber, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about November 29, 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 court's discretionary upward departure was based on clear and convincing evidence that there were aggravating factors not sufficiently taken into account by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), including defendant's repeated failure to register as a sex offender as required by the state where he committed the underlying sex offense, and his violation of his parole by absconding. The assessment of points under the risk factor for conduct while under supervision did not reflect the egregiousness of defendant's behavior, which demonstrates his inability to comply with legal requirements. The mitigating factors defendant raises are outweighed by the aggravating factors noted by the court (see e.g. People v. Corn, 128 A.D.3d 436, 437, 8 N.Y.S.3d 322 [1st Dept. 2015] ). We have considered and rejected defendant's remaining arguments.