Opinion
06-08-2017
The PEOPLE of the State of New York, Respondent, v. NICHOLAS P., Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), for respondent.
Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered August 11, 2016, 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.
Initially, we reject the People's argument that the appeal should be dismissed on the ground that defendant has been deported (see People v. Edwards, 117 A.D.3d 418, 985 N.Y.S.2d 43 [1st Dept.2014] ).
The court's upward departure to level three was supported by clear and convincing evidence of an aggravating factor not adequately taken into account by the risk assessment instrument, and which outweighed the mitigating factors cited by defendant (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). While defendant was incarcerated for the underlying offense, he conspired to murder the victim, her mother, and her brother, in order to prevent them from testifying about his sexual abuse. This supported an inference of defendant's increased risk of sexual recidivism (see People v. Bynum, 140 A.D.3d 501, 32 N.Y.S.3d 489 [1st Dept.2016] ; People v. Winfield, 122 A.D.3d 488, 995 N.Y.S.2d 76 [1st Dept.2014], lv. denied 24 N.Y.3d 917, 2015 WL 754064 [2015] ; People v. O'Flaherty, 23 A.D.3d 237, 806 N.Y.S.2d 11 [1st Dept.2005], lv. denied 6 N.Y.3d 705, 812 N.Y.S.2d 34, 845 N.E.2d 466 [2006] ).
FRIEDMAN, J.P., GISCHE, KAPNICK, KAHN, GESMER, JJ., concur.