People v Sullivan

People v Sullivan 2007 NY Slip Op 09672 [46 AD3d 285] December 6, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
Scott Sullivan, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Svetlana M. Kornfeind of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Lucy Jane Lang of counsel), for respondent.

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about November 2, 2005, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly accepted the Board of Examiners' recommendation of a discretionary upward departure (see e.g. People v Roland, 292 AD2d 271 [2002], lv denied 98 NY2d 614 [2002]), based on aggravating factors that were established by clear and convincing evidence and were not adequately taken into account by the Board's risk assessment instrument. The egregious conduct toward a child that resulted in defendant's underlying conviction, along with the circumstances surrounding that crime, demonstrate that defendant poses a grave danger to children. Concur—Tom, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.