People v. Jones

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about February 25, 2013, 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.

Regardless of whether points should have been assessed under factor 1 for defendant’s use of “forcible compulsion” or because he was “armed with a dangerous instrument,” the record supports the court’s alternate finding that a discretionary upward departure to level three was warranted under the circumstances (see People v Ratcliff, 107 AD3d 476 [1st Dept 2013], lv denied 22 NY3d 852 [2013]; see also People v Larkin, 66 AD3d 592, 593 [1st Dept 2009], lv denied 14 NY3d 704 [2010]). Clear and convincing evidence established aggravating factors that were not otherwise adequately taken into account by the risk assessment instrument, including the egregiousness of the sex offenses committed against two children and the threats defendant made to his victims to keep them from reporting his crimes.

The court also properly exercised its discretion in denying defendant’s application for a downward departure because the mitigating factors asserted by defendant, including his age and lack of prior criminal history, were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of the underlying sex crimes (see e.g. People v Melendez, 83 AD3d 448 [1st Dept 2011]). Concur — Gonzalez, EJ., Tom, Saxe, Freedman and Manzanet-Daniels, JJ.