| People v Newman |
| 2010 NY Slip Op 01894 [71 AD3d 488] |
| March 11, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v David Newman, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Paula-Rose Stark of counsel), forrespondent.
Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about October30, 2008, which, upon reargument of a prior order, same court and Justice, entered on or aboutAugust 5, 2008, adjudicating defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), modified the prior order only to the extent ofreducing defendant's presumptive risk level to level two, but departing upward to level three,unanimously affirmed, without costs. Appeal from the order of August 5, 2008 unanimouslydismissed, without costs, as superseded by the appeal from the order of October 30, 2008.
Regardless of whether defendant's correct point score would make him a presumptive risklevel one or two offender, a discretionary upward departure to level three is warranted byaggravating factors. The risk assessment instrument did not adequately account for theseriousness of defendant's criminal record, which consisted of a lengthy pattern of sexualoffenses against children, demonstrating a very high risk of reoffending (see e.g. People v Sullivan, 46 AD3d285 [2007], lv denied 10 NY3d 704 [2008]).
We also reject defendant's arguments concerning certain point assessments made by thecourt in determining that he is a presumptive level two offender (see Correction Law§ 168-n [3]; People v Mingo,12 NY3d 563 [2009]). Concur—Mazzarelli, J.P., Saxe, Moskowitz, Acosta andRenwick, JJ.