People v Gonzalez

People v Gonzalez 2006 NY Slip Op 08040 [34 AD3d 240] November 9, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent,
v
Jose Gonzalez, Appellant.

—[*1]

Order, Supreme Court, Bronx County (Harold Adler, J.), entered on or about March 30, 2004, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing various risk factors bearing a sufficient total point score to support a level three sex offender adjudication. Although the underlying conviction was based on a guilty plea to attempted rape, the People provided reliable evidence (see Correction Law § 168-n [3]) of sexual contact supporting an assessment of 25 points. The court also properly determined that, in any event, a discretionary upward departure would be warranted by the circumstance that defendant committed the underlying crime after absconding from a work release program, a factor not otherwise considered by the risk assessment instrument (see People v O'Flaherty, 23 AD3d 237 [2005], lv denied 6 NY3d 705 [2006]). Concur—Buckley, P.J., Tom, Mazzarelli, Saxe and McGuire, JJ.