People v Grassi

People v Grassi 2014 NY Slip Op 08785 Decided on December 16, 2014 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 December 16, 2014
Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman, Gische, JJ.
13808 4682/11

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

v

Mark Grassi, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and Kaye Scholer LLP, New York (Jennifer L. Taiwo of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Diane Princ of counsel), for respondent.

Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about January 4, 2013, 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 court properly assessed defendant 20 points under the risk factor relating to relationship with the victim. Defendant and the victim were strangers, notwithstanding their brief Internet exchanges, and to the extent there was any relationship, defendant established it for the purpose of victimization (see People v Tejada, 51 AD3d 472 [1st Dept 2008]).

Regardless of whether the court properly assessed points under the relationship with victim factor, the record supports the court's alternative finding that an upward departure was warranted. Even without the points disputed on appeal, defendant's point score is 105, which is nearly enough for a level three adjudication. The risk assessment instrument did not adequately account for the significant risk of recidivism indicated by defendant's failure to control his behavior notwithstanding his sentence of probation and level one adjudication following his previous sex crime conviction, as well as his pattern of behavior toward underage girls.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 16, 2014

CLERK