Opinion
11800 Ind. 57/06
07-09-2020
The PEOPLE of the State of New York, Respondent, v. EDDY M., Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Philip V. Tisne of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip V. Tisne of counsel), for respondent.
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Thomas A. Farber, J.), entered on or about October 16, 2018, 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.
Clear and convincing evidence supports the court's assessment of 30 points under the risk factor for use of violence (armed with a dangerous instrument). The evidence established that defendant displayed a knife and told the victim to come to him, and then proceeded to rape the victim who was afraid that defendant would stab her. Although defendant was not holding the knife during the actual rape, the evidence amply supports the conclusion that defendant used the knife for the purpose of forcible compulsion in the course of a continuing incident that included the rape (see People v. Parker , 145 A.D.3d 523, 523, 43 N.Y.S.3d 43 [1st Dept. 2016], lv denied 29 N.Y.3d 908, 2017 WL 1843517 [2017] ).
The court providently exercised its discretion in declining to grant a downward departure (see generally People v. Gillotti , 23 N.Y.3d 841, 861, 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 outweighed by aggravating factors, including the seriousness of the underlying offense and defendant's criminal record.