Opinion
2012-11-8
The PEOPLE of the State of New York, Respondent, v. Daniel OTERO, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), for respondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about May 5, 2010, 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 record supports the court's discretionary upward departure to level three. Initially, we note that defendant's point score was 105, which is nearly enough for a level three adjudication. The court properly determined that the risk assessment instrument did not adequately take into account aggravating factors including the seriousness of the underlying sex crime ( see e.g. People v. Schlau, 60 A.D.3d 529, 875 N.Y.S.2d 469 [1st Dept.], lv. denied 12 N.Y.3d 712, 882 N.Y.S.2d 398, 909 N.E.2d 1236 [2009] ). These aggravating factors outweighed any possible mitigating factors cited by defendant.