| People v Brown |
| 2017 NY Slip Op 02598 [149 AD3d 411] |
| April 4, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Eric Brown, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Susan Epstein of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), forrespondent.
Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered May 11, 2011,which adjudicated defendant a level two predicate sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously modified, on the law, to the extent ofvacating the predicate sex offender designation, and otherwise affirmed, without costs.
The record supports the court's discretionary upward departure to level two (see People v Gillotti, 23 NY3d841, 861-862 [2014]). There was clear and convincing evidence to establish aggravatingfactors that were not otherwise adequately accounted for by the risk assessment instrument,including defendant's pattern of predatory conduct, and his history of poor compliance withsupervision, including multiple parole violations and a conviction for failing to register as a sexoffender (see e.g. People v Solis,143 AD3d 585 [1st Dept 2016], lv denied 28 NY3d 912 [2017]). However, as thePeople concede, defendant did not qualify as a predicate sex offender. Concur—Friedman,J.P., Sweeny, Moskowitz, Gische and Kapnick, JJ.