Opinion
13242 Ind. No. 65/05 Case No. 2020-02112
03-02-2021
Marianne Karas, Thornwood, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.
Marianne Karas, Thornwood, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.
Gische, J.P., Mazzarelli, Gonza´lez, Mendez, JJ.
Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about July 29, 2019, 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 record supports the court's finding that defendant was a presumptive risk level three offender, after which the court granted defendant's request for a departure to level two. The court correctly assessed 25 points based on clear and convincing evidence that defendant committed aggravated sexual abuse. At defendant's sentencing in connection with the underlying conviction, the court struck references to some of defendant's alleged conduct during the offense from the presentence report. However, the SORA court did not rely on anything that the prior Justice had stricken from that report. Instead, it properly relied on the victim's grand jury testimony and a police report (see People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; see also People v. Epstein, 89 A.D.3d 570, 933 N.Y.S.2d 239 [1st Dept. 2011] ).
In any event, regardless of whether defendant's correct point score is actually 95, as he contends, the record does not establish any basis for a further downward departure to level one (see generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).