People v Figueroa

People v Figueroa 2017 NY Slip Op 08316 Decided on November 28, 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 November 28, 2017
Richter, J.P., Kapnick, Webber, Oing, Singh, JJ.
5047 1775/02

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

v

Nelson Figueroa, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.

Order, Supreme Court, New York County (Larry R.C. Stephen, J.), entered on or about September 10, 2015, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law, to the extent of reducing the classification to that of a level two offender, and otherwise affirmed, without costs.

As the People apparently concede, the record does not support the court's point assessments for use of a dangerous instrument and for multiple victims. Accordingly, defendant's correct point score is 100, which supports a level two adjudication. We reject the People's request for an upward departure, as the aggravating factors they cite have either been

adequately taken into account by the guidelines or are insufficiently indicative of sexual recidivism.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 28, 2017

CLERK