Opinion
16479 SCI No. 4500/18 Case No. 2020–04895
10-18-2022
The PEOPLE of the State of New York, Respondent, v. Wilfredo GONZALEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Acosta, P.J., Renwick, Webber, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Althea E. Drysdale, J.), entered or about November 18, 2020, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court providently exercised its discretion in granting an upward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Clear and convincing evidence established aggravating circumstances that were not accounted for by the risk assessment instrument, including defendant's two prior convictions for forcible touching on subway trains, which reflect facts similar to those that underlie his most recent forcible touching conviction. Defendant committed his most recent sex offense only three months after his release from incarceration in connection with his second forcible touching conviction. In addition, defendant had already been adjudicated a level one offender, and his misconduct violated a condition of his parole that precluded him from riding trains. Under the totality of circumstances, defendant's conduct demonstrates an inability to control his behavior, and a potential danger to the public that was not adequately accounted for by way of point assessments (see People v. Lacy, 185 A.D.3d 416, 124 N.Y.S.3d 787 [1st Dept. 2020], lv denied 35 N.Y.3d 916, 2020 WL 6189193 [2020] ; People v. Taylor, 154 A.D.3d 524, 61 N.Y.S.3d 881 [1st Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 326938 [2018] ). The mitigating factors cited by defendant relied upon were outweighed by the aggravating factors.