People v Larkin

People v Larkin 2009 NY Slip Op 07744 [66 AD3d 592] October 29, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

The People of the State of New York, Respondent,
v
Raymond Larkin, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Charlotte Fishman of counsel), for respondent.

Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about February 9, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

As the People concede, certain points were incorrectly assessed, and defendant's presumptive risk level should thus be level two. Nevertheless, the record supports the conclusion that an upward departure to level three is warranted. The hearing court denied, as unnecessary, the People's request for an upward departure. Accordingly, we are authorized, on this civil appeal, to affirm on this alternative basis (see CPLR 5501 [a] [1]; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-546 [1983]; see also People v Hoffman, 62 AD3d 976 [2009]; People v Middleton, 50 AD3d 1114 [2008], affd 12 NY3d 737 [2009]), and the record is sufficient for this Court to make its own findings of fact and conclusions of law on this issue (see People v Ashby, 56 AD3d 633 [2008]).

Clear and convincing evidence established aggravating factors that were not otherwise adequately taken into account by the risk assessment guidelines. Defendant's background includes a pattern of very serious criminal activity displaying a strong likelihood of sex-related recidivism (see e.g. People v Balic, 52 AD3d 201 [2008], affd 12 NY3d 563 [2009]). Concur—Gonzalez, P.J., Saxe, Catterson, McGuire and Acosta, JJ.