People v. Sostenes ( 2019 )

People v Sostenes (2019 NY Slip Op 04771)

People v Sostenes

2019 NY Slip Op 04771

Decided on June 13, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2019
Friedman, J.P., Richter, Tom, Gesmer, Moulton, JJ.

9618 2173/09

[*1]The People of the State of New York, Respondent,

v

Francisco Sostenes, Defendant-Appellant.

Justine M. Luongo, The Legal Aid Society, New York (Ronald Alfano of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.

Order, Supreme Court, New York County (Roger S. Hayes, J.), entered on or about April 4, 2014, 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 court properly assessed 15 points under the risk factor for failure to accept responsibility, based on defendant's failure to complete a sex offender treatment program as well as his statements tending to negate his guilt. The record also supports the court's discretionary upward departure, based on clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for in the risk assessment instrument (see People v Gillotti, 23 NY3d 841, 861—862 [2014]), most notably an admitted prior sex offense with disturbing similarities to the underlying crime. We also find no basis for a downward departure.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 13, 2019

CLERK