People v Otero

People v Otero 2012 NY Slip Op 07382 Decided on November 8, 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 November 8, 2012
Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
8422 2992/07

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

v

Daniel Otero, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Joanne
Legano Ross of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of
counsel), for respondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about May 5, 2010, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure to level three. Initially, we note that defendant's point score was 105, which is nearly enough for a level three adjudication. The court properly determined that the risk assessment instrument did not adequately take into account aggravating factors including the seriousness of the underlying
sex crime (see e.g. People v Schlau, 60 AD3d 529 [1st Dept], lv denied 12 NY3d 712 [2009]). These aggravating factors outweighed any possible mitigating factors cited by defendant.

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

ENTERED: NOVEMBER 8, 2012, a.m.

CLERK