Opinion
2013-04-2
The PEOPLE of the State of New York, Respondent, v. Dorom YOMTOV, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Order, Supreme Court, New York County (John Cataldo, J.), entered on or about December 18, 2008, which adjudicated defendant a level two sexually violent offender under the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly assessed 10 points under the risk factor for failing to accept responsibility. Defendant made efforts to shift blame to the child victim that evinced a lack of genuine acceptance of responsibility ( see People v. Teagle, 64 A.D.3d 549, 884 N.Y.S.2d 80 [2d Dept. 2009];People v. Baker, 57 A.D.3d 1472, 871 N.Y.S.2d 537 [4th Dept. 2008],lv. denied12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087 [2009] ).
In any event, the record supports the court's determination that, regardless of whether defendant's correct point score should be 65 or 75, an upward departure to level two is warranted, based on the seriousness of defendant's course of conduct toward a child and of the surrounding circumstances ( see e. g. People v. Mantilla, 70 A.D.3d 477, 478, 894 N.Y.S.2d 418 [2010],lv. denied 15 N.Y.3d 706, 908 N.Y.S.2d 160, 934 N.E.2d 894 [2010] ). This egregiousness of defendant's behavior was an “aggravating ... factor of a kind, or to a degree, that [was] not otherwise adequately taken into account by the guidelines” ( People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ).