| People v Aguilar |
| 2012 NY Slip Op 00701 [92 AD3d 401] |
| February 2, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseAguilar, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Lindsey J. Ramistella of counsel), forrespondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about June 17,2010, which adjudicated defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously modified, as a matter of discretion in theinterest of justice, to the extent of reducing the adjudication to that of a level two offender, andotherwise affirmed, without costs.
The court improvidently exercised its discretion (see generally People v Johnson, 11 NY3d 416, 421 [2008]) inimposing an upward departure to level three. Initially, we note that defendant's point score of 85was well below the threshold for a level three adjudication, and that neither the People nor theBoard of Examiners of Sex Offenders recommended an upward departure.
The factors cited by the court, viewed in light of all the circumstances of the case, did notwarrant an upward departure. Defendant's failure to accept responsibility for the underlyingcrime, including his denial of the charges at his trial, was adequately accounted for in the riskassessment instrument. Furthermore, the circumstances of defendant's failure to acceptresponsibility were not of a type that would indicate a strong likelihood of recidivism. Althoughthe fact that defendant's victim was his girlfriend's granddaughter is a reprehensible feature of theunderlying offense, it does not, by itself, support an upward departure in this case.Concur—Gonzalez, P.J., Saxe, Moskowitz, Acosta and Freedman, JJ.