Opinion
15022 Ind. Nos. 4181/04, 7006/04 Case No. 2019–4012
01-11-2022
The PEOPLE of the State of New York, Respondent, v. Harry WILLIAMS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Kerry Fulham of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kerry Fulham of counsel), for respondent.
Renwick, J.P., Kapnick, Moulton, Kennedy, Scarpulla, JJ.
Order, Supreme Court, New York County (Stephen M. Antignani, J.), entered on or about April 10, 2019, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–c), unanimously affirmed, without costs.
Defendant should have been assessed 15 rather than 30 points under the risk factor for prior crimes. The extra 15 points involved a weapon possession crime committed in 2002, after defendant had committed the underlying sex crimes in 2001, but before defendant was convicted of the sex crimes in 2005. Accordingly, the weapon offense did not qualify under this risk factor as a prior crime (see People v. Green, 192 A.D.3d 927, 140 N.Y.S.3d 722 [2d Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4188901 [2021] ; People v. Neuer, 86 A.D.3d 926, 926 N.Y.S.2d 793 [4th Dept. 2011], lv denied 17 N.Y.3d 716, 2011 WL 5573990 [2011] ; People v. Buggs, 25 Misc.3d 130[A], 2009 N.Y. Slip Op. 52117[U], 2009 WL 3378326 [App. Term 9th and 10th Jud. Dists. 2009] ).
Nevertheless, even without those points defendant remains a level three offender, and even with the corrected point score we find no basis for a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or are outweighed by the gravity of the underlying crimes, which were two separate violent gunpoint rapes.