People v Vives

People v Vives 2008 NY Slip Op 09829 [57 AD3d 312] December 16, 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
Daniel Vives, Appellant.

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

Robert M. Morgenthau, District Attorney, New York (Susan Gliner of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about March 15, 2007, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure to a level three sex offender adjudication. There was ample evidence to support aggravating factors not adequately accounted for in the risk assessment instrument (see e.g. People v O'Flaherty, 23 AD3d 237 [2005], lv denied 6 NY3d 705 [2006]), and there was no improper double counting. These aggravating factors demonstrated that defendant is a dangerous pedophile with a grave risk of reoffending, notwithstanding his conclusory claims of having been rehabilitated during his incarceration. Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ.