Opinion
2014-02-20
The PEOPLE of the State of New York, Respondent, v. Leon JONES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about February 25, 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.
Regardless of whether points should have been assessed under factor 1 for defendant's use of “forcible compulsion” or because he was “armed with a dangerous instrument,” the record supports the court's alternate finding that a discretionary upward departure to level three was warranted under the circumstances ( see 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];see also People v. Larkin, 66 A.D.3d 592, 593, 886 N.Y.S.2d 804 [1st Dept.2009],lv. denied 14 N.Y.3d 704, 2010 WL 606966 [2010] ). Clear and convincing evidence established aggravating factors that were not otherwise adequately taken into account by the risk assessment instrument, including the egregiousness of the sex offenses committed against two children and the threats defendant made to his victims to keep them from reporting his crimes.
The court also properly exercised its discretion in denying defendant's application for a downward departure because the mitigating factors asserted by defendant, including his age and lack of prior criminal history, were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of the underlying sex crimes ( see e.g. People v. Melendez, 83 A.D.3d 448, 919 N.Y.S.2d 850 [1st Dept.2011] ). GONZALEZ, P.J., TOM, SAXE, FREEDMAN, MANZANET–DANIELS, JJ., concur.