People v Brown

People v Brown 2017 NY Slip Op 02598 Decided on April 4, 2017 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 April 4, 2017
Friedman, J.P., Sweeny, Moskowitz, Gische, Kapnick, JJ.
3620 58534/10

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

v

Eric Brown, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Susan Epstein of counsel), for appellant.

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

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered May 11, 2011, which adjudicated defendant a level two predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law, to the extent of vacating the predicate sex offender designation, and otherwise affirmed, without costs.

The record supports the court's discretionary upward departure to level two (see People v Gillotti, 23 NY3d 841, 861-862 [2014]). There was clear and convincing evidence to establish aggravating factors that were not otherwise adequately accounted for by the risk assessment instrument, including defendant's pattern of predatory conduct, and his history of poor compliance with supervision, including multiple parole violations and a conviction for failing to register as a sex offender (see e.g. People Solis, 143 AD3d 585 [1st Dept 2016], lv denied 28 NY3d 912 [2017]). However, as the People concede, defendant did not qualify as a predicate sex offender.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 4, 2017

CLERK