People v Fernandez

People v Fernandez 2015 NY Slip Op 01877 Decided on March 5, 2015 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 March 5, 2015
Mazzarelli, J.P., Sweeny, Moskowitz, Clark, Kapnick, JJ.
14447 1623/09

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

v

Jeffrey Fernandez, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.

Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about October 13, 2011, 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 People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level two adjudication. Defendant's course of conduct supports the inference that he established a relationship with a child for the purpose of victimization (see People v Katz, 121 AD3d 593 [1st Dept 2014]). The risk factor for a history of drug abuse was established by a combination of

defendant's admissions and criminal history (see People v Harden, 60 AD3d 486 [1st Dept 2009], lv denied and dismissed 12 NY3d 899 [2009]).

We also find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). We do not find that there were any overassessments of points, and the mitigating factors cited by defendant are outweighed by the seriousness of the underlying crime.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 5, 2015

CLERK