| People v Larkin |
| 2009 NY Slip Op 07744 [66 AD3d 592] |
| October 29, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Raymond Larkin, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Charlotte Fishman of counsel), forrespondent.
Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about February9, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.
As the People concede, certain points were incorrectly assessed, and defendant's presumptiverisk level should thus be level two. Nevertheless, the record supports the conclusion that anupward departure to level three is warranted. The hearing court denied, as unnecessary, thePeople's request for an upward departure. Accordingly, we are authorized, on this civil appeal, toaffirm on this alternative basis (see CPLR 5501 [a] [1]; Parochial Bus Sys. v Boardof Educ. of City of N.Y., 60 NY2d 539, 544-546 [1983]; see also People v Hoffman, 62 AD3d 976 [2009]; People v Middleton, 50 AD3d1114 [2008], affd 12 NY3d 737 [2009]), and the record is sufficient for this Court tomake its own findings of fact and conclusions of law on this issue (see People v Ashby, 56 AD3d 633[2008]).
Clear and convincing evidence established aggravating factors that were not otherwiseadequately taken into account by the risk assessment guidelines. Defendant's backgroundincludes a pattern of very serious criminal activity displaying a strong likelihood of sex-relatedrecidivism (see e.g. People vBalic, 52 AD3d 201 [2008], affd 12 NY3d 563 [2009]).Concur—Gonzalez, P.J., Saxe, Catterson, McGuire and Acosta, JJ.