People v Guasp

People v Guasp 2012 NY Slip Op 03766 Decided on May 15, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 15, 2012
Mazzarelli, J.P., Catterson, Moskowitz, Richter, Manzanet-Daniels, JJ.
7641 4244/08

[*1]The People of the State of New York, Respondent,

v

Jose Guasp, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Joanne
Legano Ross of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karinna M.
Arroyo of counsel), for respondent.

Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about July 27, 2010, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 15 points under the risk factor for drug or alcohol abuse. This was established by the results of a screening test for alcoholism and defendant's admissions to corrections officials regarding his drug use (see e.g. People v Johnson, 77 AD3d 548 [2010], lv denied 16 NY3d 705 [2011]).

In any event, regardless of whether defendant's correct point score was 55, as he claims, or 70, as the court found, the record supports the court's discretionary upward departure to level two. The court properly determined that although defendant received points relating to the facts of the underlying sex crime, the risk assessment instrument failed to adequately take into account the crime's unusual brutality and heinous quality (see e.g. People v Miller, 48 AD3d 774 [2008], lv denied 10 NY3d 711 [2008]; People v Sanford, 47 AD3d 454, lv denied 10 NY3d 707 [2008]). These aggravating factors outweighed the mitigating factors cited by defendant.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 15, 2012

CLERK