| People v Scott |
| 2014 NY Slip Op 00295 [113 AD3d 491] |
| January 21, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Clive Scott, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered on or aboutJune 7, 2010, which adjudicated defendant a level two sexually violent offender pursuantto the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed,without costs.
Initially, we decline to dismiss this appeal on the ground that defendant has beendeported (see People vVentura, 17 NY3d 675, 679-680 [2011]). Although this is a civil appeal, werecognize the potential consequences of the SORA adjudication and conclude thatdefendant should be given an opportunity for intermediate appellate review of the issuespresented here.
The People failed to present clear and convincing evidence that defendant had ahistory of alcohol abuse or was abusing alcohol at the time of the sex offense (see People v Palmer, 20 NY3d373 [2013]). Therefore, the court incorrectly assessed 15 points under that riskfactor, and defendant's correct point score would render him a level one offender.Nevertheless, we affirm on an alternative ground (see People v Larkin, 66 AD3d 592, 593 [1st Dept 2009],lv denied 14 NY3d 704 [2010]). We agree with the Board of Examiners that anupward departure was warranted in light of the extreme seriousness of defendant'sactions after the sex offense, including his attempt to hire an undercover police officer tomurder the victim of his crime.[FN*] These aggravating factors are reflected in the record before us, and were not otherwiseadequately accounted for in the risk assessment instrument. Concur—Gonzalez,P.J., Andrias, Saxe, Richter and Clark, JJ.
Footnote *: Even if we were toaccept defendant's argument that he should not have been assessed points for lack ofsupervision because he now is in another country, an affirmance still would beappropriate because of the upward departure.