| People v Sherard |
| 2010 NY Slip Op 04116 [73 AD3d 537] |
| May 13, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Sherard, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Order, Supreme Court, New York County (Carol Berkman, J.), entered on or about July 25,2007, which adjudicated defendant a level two sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court's discretionary upward departure was based on clear and convincing evidence ofaggravating factors to a degree not taken into account by the risk assessment instrument (see e.g. People v Miller, 48 AD3d774 [2008], lv denied 10 NY3d 711 [2008]). The court properly based its upwarddeparture on a combination of factors, including the level of force and aggression involved in theunderlying crime, defendant's failure to accept responsibility, particularly by denying his guilt,and his conduct while incarcerated. In addition, defendant's point score under the risk assessmentinstrument was nearly at level two.
The court properly exercised its discretion in denying defendant's request for a lengthyadjournment to obtain additional information about his prison record. The court also properlydenied his request to waive his presence "at future adjournments," since there was no need forsuch adjournments. A court has considerable discretion to control its calendar (see e.g.People v Coppez, 93 NY2d 249, 252 [1999]), and defendant failed to demonstrate howdelaying the hearing would permit him to obtain documents relevant to the determination of hissex offender level. In any event, defendant was not prejudiced by the denial of an adjournment.Even if [*2]defendant's prison record is disregarded as anaggravating factor, there was still ample basis for the court's upward departure.Concur—Andrias, J.P., Catterson, Renwick, Richter and RomÁn, JJ.