Opinion
2022-00135 Ind. 4181/04 7006/04
01-11-2022
The People of the State of New York, Respondent, v. Harry Williams, Defendant-Appellant. Appeal No. 15022 No. 2019-4012
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.
Before: 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 [2d Dept 2021], lv denied 37 N.Y.3d 910 [2021]; People v Neuer, 86 A.D.3d 926 [4th Dept 2011], lv denied 17 N.Y.3d 716 [2011]; People v Buggs, 25 Misc.3d 130 [A], 2009 NY Slip Op 52117[U] [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 [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.