Opinion
15235, 2498/13
05-26-2015
The PEOPLE of the State of New York SCI, Respondent, v. Eddie RODRIGUEZ, Defendant–Appellant.
The Bronx Defenders, Bronx (V. Marika Meis of counsel), and Chadbourne & Parke LLP, New York (Jessica Staton of counsel), for appellant. Robert T, Johnson, District Attorney, Bronx (William Terrell, III of counsel), for respondent.
The Bronx Defenders, Bronx (V. Marika Meis of counsel), and Chadbourne & Parke LLP, New York (Jessica Staton of counsel), for appellant.
Robert T, Johnson, District Attorney, Bronx (William Terrell, III of counsel), for respondent.
TOM, J.P., FRIEDMAN, SWEENY, SAXE, CLARK, JJ.
Opinion Order, Supreme Court, Bronx County (John S. Moore, J.), entered on or about November 18, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court's upward departure was supported by clear and convincing evidence establishing aggravating factors that were not adequately taken into account by the risk assessment instrument. First, the assessment of points for the victim's age being under 11 did not sufficiently reflect the aggravating factor of the victim being only five years old (see People v. Mantilla, 70 A.D.3d 477, 478, 894 N.Y.S.2d 418 [1st Dept.2010], lv. denied 15 N.Y.3d 706, 2010 WL 3546757 [2010] ). Second, defendant made a strange and disturbing statement in a presentence interview, alleging that the five-year-old child invited defendant's sexual conduct, and implying that defendant was justified in accepting the purported invitation. Such a statement evinces a state of mind that poses a danger to children. This statement was both a proper basis for an assessment of points under the risk factor for failing to accept responsibility (see People v. Yomtov, 105 A.D.3d 422, 422, 961 N.Y.S.2d 775 [1st Dept.2013], lv. denied 21 N.Y.3d 585, 970 N.Y.S.2d 495, 992 N.E.2d 423 [2013] ), and a further basis, as cited by the court, for the upward departure because its egregiousness was not adequately taken into account.