People v. Wellman , 37 N.Y.S.3d 879 ( 2016 )

People v Wellman (2016 NY Slip Op 06170)

People v Wellman

2016 NY Slip Op 06170

Decided on September 27, 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 September 27, 2016
Sweeny, J.P., Manzanet-Daniels, Feinman, Kapnick, Webber, JJ.

1730 1658/87

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

v

Mark Wellman, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (David P. Johnson of counsel), for respondent.

Order, Supreme Court, Bronx County (Seth L. Marvin, J.), entered on or about February 26, 2014, 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 court correctly assessed points under the risk factor for failure to accept responsibility (see e.g. People v Fortin, 29 AD3d 765, 766 [2d Dept 2006], lv denied 7 NY3d 712 [2006]). Given defendant's prison disciplinary record, the court also correctly assessed points under the risk factor for unsatisfactory conduct while confined. However, since the People failed to prove by clear and convincing evidence that defendant engaged in sexual misconduct while in prison, the assessment under the risk factor for conduct while confined should only have been 10 points rather than 20. Even with a reduction of 10 points, defendant remains a level three offender, and, given the heinousness of the underlying crime against a young child, we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 27, 2016

CLERK