People v. Fenton , 145 A.D.3d 519 ( 2016 )

People v Fenton (2016 NY Slip Op 08320)

People v Fenton

2016 NY Slip Op 08320

Decided on December 13, 2016

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 December 13, 2016
Tom, J.P., Friedman, Saxe, Feinman, Kahn, JJ.

2441 3714/13

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

v

Sheldon Fenton, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Beth R. Kublin of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered July 8, 2015, 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.

The People did not meet their burden of establishing, by clear and convincing evidence, that defendant was actually armed with a dangerous instrument during the commission of the offenses (see People v Pearce, 135 AD3d 722 [2d Dept 2016]). Accordingly, 20 points were incorrectly assessed. However, after those points are deducted, resulting in a point score of 75, defendant remains a level two offender, and we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There

were no mitigating factors that were not adequately taken into account by the risk assessment instrument.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2016

CLERK