Opinion
2012-02-7
The PEOPLE of the State of New York, Respondent, v. John WALDEN, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.
Orders, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about April 14, 2009, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law Art. 6–C), unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the adjudication to that of a level one sex offender, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about September 14, 2009, which, upon reargument, adhered to the prior decision, unanimously dismissed, without costs, as academic.
The court erred in initially designating defendant a level three offender rather than a level two offender. The record at best, only supports the level two classification. We exercise our independent discretion to grant defendant a downward departure to level one ( see People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ).