Opinion
13484, 4656/07
11-13-2014
The PEOPLE of the State of New York, Respondent, v. Robert FULTZ, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, MOSKOWITZ, RICHTER, FEINMAN, JJ.
Opinion Order, Supreme Court, Bronx County (John S. Moore, J.), entered on or about January 24, 2012, adjudicating defendant a level three sexually violent felony 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, based on facts established by clear and convincing evidence. “[T]he level suggested by the [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation” (People v. Mingo, 12 N.Y.3d 563, 568 n. 2, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009], see also People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). Here, even though defendant was assessed points under the risk factors for use of violence, sexual contact and the fact that the victim was a stranger, the RAI did not adequately account for the “extreme egregiousness” (People v. Ratcliff, 107 A.D.3d 476, 966 N.Y.S.2d 433 [1st Dept.2013], lv. denied 22 N.Y.3d 852, 2013 WL 5567980 [2013] ) of defendant's conduct, which involved a brutal home-invasion gang rape (see e.g. People v. Guasp, 95 A.D.3d 608, 944 N.Y.S.2d 112 [1st Dept.2012], lv. denied 19 N.Y.3d 812, 2012 WL 4017728 [2012] ).