People v Jardin

People v Jardin 2008 NY Slip Op 09463 [57 AD3d 229] December 2, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Evaristo Jardin, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Dana Levin of counsel), for respondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about March 22, 2007, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant's arguments against an upward departure are improperly raised for the first time on appeal (see CPLR 4017, 5501 [a] [3]; Correction Law § 168-n [3]; People v Hernandez, 44 AD3d 565 [2007], lv denied, 10 NY3d 708 [2008]). In any event, the court properly exercised its discretion in upwardly departing from defendant's presumptive risk level, based on the seriousness of a prior conviction involving the death of one victim and serious injury to another, and of the underlying sex crime. These aggravating factors were not adequately accounted for in the risk assessment instrument, which did not fully capture the seriousness of defendant's conduct (see People v Balic, 52 AD3d 201 [2008]; People v Ferrer, 35 AD3d 297 [2006], lv denied 8 NY3d 807 [2007]). Concur—Tom, J.P., Nardelli, McGuire, Acosta and DeGrasse, JJ.