Opinion
2014-01-21
The PEOPLE of the State of New York, Respondent, v. Clive SCOTT, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Cheryl P. Williams of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Cheryl P. Williams of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.
Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered on or about June 7, 2010, 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.
Initially, we decline to dismiss this appeal on the ground that defendant has been deported ( see People v. Ventura, 17 N.Y.3d 675, 679–680, 934 N.Y.S.2d 756, 958 N.E.2d 884 [2011] ). Although this is a civil appeal, we recognize the potential consequences of the SORA adjudication and conclude that defendant should be given an opportunity for intermediate appellate review of the issues presented here.
The People failed to present clear and convincing evidence that defendant had a history of alcohol abuse or was abusing alcohol at the time of the sex offense ( see People v. Palmer, 20 N.Y.3d 373, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ). Therefore, the court incorrectly assessed 15 points under that risk factor, and defendant's correct point score would render him a level one offender. Nevertheless, we affirm on an alternative ground ( see People v. Larkin, 66 A.D.3d 592, 593, 886 N.Y.S.2d 804 [1st Dept.2009], lv. denied 14 N.Y.3d 704, 2010 WL 606966 [2010] ). We agree with the Board of Examiners that an upward departure was warranted in light of the extreme seriousness of defendant's actions after the sex offense, including his attempt to hire an undercover police officer to murder the victim of his crime. These aggravating factors are reflected in the record before us, and were not otherwise adequately accounted for in the risk assessment instrument.
Even if we were to accept defendant's argument that he should not have been assessed points for lack of supervision because he now is in another country, an affirmance still would be appropriate because of the upward departure.
GONZALEZ, P.J., ANDRIAS, SAXE, RICHTER, CLARK, JJ., concur.