Opinion
2014-11-25
The PEOPLE of the State of New York, Respondent, v. William FAULKNER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, ANDRIAS, SAXE, KAPNICK, JJ.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about February 24, 2012, which adjudicated defendant a level three sexually violent offender and a predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The record supports the court's discretionary upward departure to level three. Clear and convincing evidence established aggravating factors that were not otherwise adequately taken into account by the risk assessment guidelines ( see e.g. People v. Larkin, 66 A.D.3d 592, 886 N.Y.S.2d 804 [1st Dept.2009], lv. denied14 N.Y.3d 704, 2010 WL 606966 [2010] ). Even though defendant was assessed the maximum available amount of points for his criminal history, this did not reflect the extent of that history. Among other things, at the time of the underlying offense defendant had already been adjudicated a level two offender. Defendant has demonstrated a high risk of sexual recidivism, which outweighs the mitigating factors he cites.
The court properly designated defendant a sexually violent offender and a predicate sex offender, since he was convicted of persistent sexual abuse, an enumerated sexually violent offense ( seeCorrection Law § 168–a[3][a][ii]; [7][b], [c] ). The court also properly determined that it lacked discretion to do otherwise ( see People v. Golliver, 97 A.D.3d 734, 948 N.Y.S.2d 427 [2d Dept.2012], lv. denied19 N.Y.3d 813, 2012 WL 4074154 [2012]; People v. Williams, 96 A.D.3d 421, 945 N.Y.S.2d 305 [1st Dept.2012], lv. denied19 N.Y.3d 813, 2012 WL 4074334 [2012]; People v. Ayala, 72 A.D.3d 1577, 898 N.Y.S.2d 912 [4th Dept.2010], lv. denied15 N.Y.3d 816, 908 N.Y.S.2d 148, 934 N.E.2d 882 [2010]; People v. Lockwood, 308 A.D.2d 640, 764 N.Y.S.2d 290 [3d Dept.2003]; see also People v. Bullock, –––A.D.3d ––––, 997 N.Y.S.2d 396 (Appeal No. 12785); People v. Rodriguez, 122 A.D.3d 538, 997 N.Y.S.2d 409 (Appeal Nos. 12865–12866) decided herewith). In any event, the court made an alternative determination that even if it had such discretion, the result would be the same, and we see no reason to disturb that determination.