Opinion
11871 Ind. No. 99090/16 Case No. 2017-2670
09-29-2020
The PEOPLE of the State of New York, Respondent, v. Yuli MALENA, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about April 7, 2017, 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 record supports the court's discretionary upward departure, based on clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Fifteen hours' worth of video files of child pornography were found on defendant's computer; several of the video files had titles referencing rape and incest; and the nature of one of the video files was excessively graphic. The risk assessment instrument did not adequately account for these aggravating factors, which justified the court's provident exercise of discretion to upwardly depart to a level two risk designation (see People v. Almonte, 175 A.D.3d 1203, 106 N.Y.S.3d 863 [1st Dept. 2019] ).
The mitigating factors cited by defendant, such as his strong work ethic, continued family support, lack of criminal record, and enrollment in sex offender treatment and therapy were either adequately taken into account by the risk assessment instrument or outweighed by the substantiated aggravating factors (see e.g. People v. McVey, 151 A.D.3d 637, 637, 58 N.Y.S.3d 336 [1st Dept. 2017] ; People v. Zaire, 123 A.D.3d 641, 999 N.Y.S.2d 78 [1st Dept. 2014], lv denied 25 N.Y.3d 903, 2015 WL 1471840 [2015] ).
We have considered and rejected defendant's remaining arguments.