People v Johnson

People v Johnson 2007 NY Slip Op 01475 [37 AD3d 343] February 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

The People of the State of New York, Respondent,
v
Stanley Johnson, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Nicole Beder of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about May 26, 2004, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant's argument that the hearing court's upward departure from level two to level three improperly relied on factors already accounted for in defendant's basic score is unpreserved (see People v Cassano, 34 AD3d 239 [2006]), and without merit in any event. The upward departure was properly based on the fact that, while admitted to a psychiatric hospital, defendant raped a fellow patient. Contrary to defendant's contention, the hearing court did not rely on the violence of the underlying crime. While the court did rely to some extent on defendant's mental illness, mental illness was not part of his basic score, so there was no double-counting. Concur—Andrias, J.P., Sullivan, Williams, Sweeny and Malone, JJ.