Opinion
11741 Ind. 30068/17
07-02-2020
The PEOPLE of the State of New York, Respondent, v. Ronnie LACY, Defendant–Appellant.
Christina Swarns, Office of the Appellate Defender, New York (Angie Louie of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Christina Swarns, Office of the Appellate Defender, New York (Angie Louie of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Richter, J.P., Kapnick, Webber, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about September 21, 2017, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court providently exercised its discretion in granting an upward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Clear and convincing evidence established aggravating circumstances that were not accounted for by the risk assessment instrument, consisting of defendant's prior sex offenses, which were disposed of after the Board assessed defendant's risk for this case (see People v. Encarnacion–Diaz, 165 A.D.3d 490, 86 N.Y.S.3d 24 [1st Dept. 2018] ). These offenses "demonstrated an extremely high risk of recidivism, and [defendant's] argument that the type of misconduct in which he habitually engages is not serious enough to warrant a level three designation is unpersuasive" ( People v. Corian, 77 A.D.3d 590, 590, 909 N.Y.S.2d 360 [1st Dept. 2010], lv denied 16 N.Y.3d 705, 919 N.Y.S.2d 120, 944 N.E.2d 658 [2011] ).
Defendant's argument that the court erroneously assessed certain points is academic, because subtraction of those points would not affect his presumptive risk level, from which, as we have determined, the court justifiably departed (see People v. Corn, 128 A.D.3d 436, 437, 8 N.Y.S.3d 322 [1st Dept. 2015] ). In any event, the points were correctly assessed. We have considered defendant's remaining contentions and find them unavailing.