Opinion
11850 Ind. 1631/16
07-16-2020
The PEOPLE of the State of New York, Respondent, v. Walter WRIGHT, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Christina Wong of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Christina Wong of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 19, 2018, 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.
The record supports the court's discretionary upward departure to risk level three (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). There was clear and convincing evidence to establish aggravating factors that were not otherwise adequately accounted for by the risk assessment instrument, including defendant's criminal history that demonstrated an increased risk of sexual recidivism, including reoffense toward children. The People provided reliable evidence of defendant's history, and the aggravating factors outweighed the mitigating factors cited by defendant.
The court properly assessed 15 points under the risk factor for a history of drug abuse. The totality of the information before the court supported a finding that defendant's admitted use of marijuana was sufficiently serious to warrant the assessment (see People v. Ramos, 171 A.D.3d 483, 484, 98 N.Y.S.3d 20 [1st Dept. 2019], lv denied 33 N.Y.3d 912, 2019 WL 4200804 [2019] ). In any event, the upward departure was justified with or without the points at issue.
We have considered and rejected defendant's remaining claims, including those relating to the sufficiency of the court's findings.