Opinion
52 Ind. No. 1357/13 Case No. 2015–1309
04-18-2023
The PEOPLE of the State of New York, Respondent, v. Cornell SIMS, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.
Webber, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about November 18, 2014, 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 correctly assessed 15 points under the risk factor for drug or alcohol abuse. Defendant admitted to a long history of drug use that was not remote in time, and drug testing resulted in a referral to a substance abuse program in prison (see People v. Ramos, 171 A.D.3d 483, 484, 98 N.Y.S.3d 20 [1st Dept. 2019], lv denied 33 N.Y.3d 912, 2019 WL 4200804 [2019] ; People v. Greene, 154 A.D.3d 583, 61 N.Y.S.3d 902 [1st Dept. 2017], lv denied 30 N.Y.3d 913, 2018 WL 943505 [2018] ).
The record supports the court's upward departure to level two. Clear and convincing evidence established aggravating factors not adequately taken into account by the risk assessment instrument (see generally People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), "which assessed points based on the mere existence of certain prior convictions but did not sufficiently reflect the egregious pattern and risk of recidivism reflected in defendant's criminal background" ( People v. Carmona, 212 A.D.3d 537, 537, 180 N.Y.S.3d 530 [1st Dept. 2023] ; see 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] ). Defendant committed the underlying crime after he had already been convicted three times of the same type of sex crime and after he had previously been adjudicated a level two offender. These aggravating factors also outweighed the unexceptional mitigating factors cited by defendant.