People v Cherry

2009 NY Slip Op 01841 [60 AD3d 484]

March 12, 2009

Appellate Division, First Department

As corrected through Wednesday, May 6, 2009

The People of the State of New York,Respondent, v Nathaniel Cherry, Appellant.

—[*1]Steven Banks, The Legal Aid Society, New York (Karen M. Kalikow of counsel), forappellant.

Robert M. Morgenthau, District Attorney, New York (Malancha Chanda of counsel), forrespondent.

Judgment, Supreme Court, New York County (Eduardo Padro, J.), entered on or aboutFebruary 15, 2007, which adjudicated defendant a level three offender under the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure to a level three sex offenderadjudication. There was clear and convincing evidence of factors, not adequately accounted forin the risk assessment instrument, demonstrating that defendant has a high risk of reoffending(see e.g. People v O'Flaherty, 23AD3d 237 [2005], lv denied 6 NY3d 705 [2006]). Concur—Andrias, J.P.,Saxe, Acosta and Renwick, JJ.