People v Balic

2008 NY Slip Op 04905

Decided on June 3, 2008

Appellate Division, First Department

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

Decided on June 3, 2008
Lippman, P.J., Mazzarelli, Williams, Sweeny, Acosta, JJ.
3771 630/05






Steven Banks, The Legal Aid Society, New York (Amy Donner
of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Lucy Jane
Lang of counsel), for respondent.

Order, Supreme Court, New York County (Brenda Soloff, J.), entered on or about September 14, 2005, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

As the People concede, certain points were incorrectly assessed and defendant's presumptive risk level should thus be level one. Nevertheless, the record supports the court's alternate conclusion that an upward departure to level two is warranted. Clear and convincing evidence established aggravating factors that were not otherwise adequately taken into account by the risk assessment guidelines (see e.g. People v Brown, 45 AD3d 1123 [2007]). Defendant's background includes a violent sexual
attack on a child, and a pattern of misconduct displaying a likelihood of recidivism.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 3, 2008

CLERK