People v Rodriguez

People v Rodriguez 2017 NY Slip Op 08728 Decided on December 14, 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 December 14, 2017
Friedman, J.P., Kahn, Gesmer, Kern, Moulton, JJ.
5212 1536/04

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

v

Guillermo Rodriguez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Beth R. Kublin of counsel), for respondent.

Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered on or about February 19, 2016, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion (see generally People v Gillotti, 23 NY3d 841, 861 [2014]) in following the Board of Examiners of Sex Offenders' recommendation for an upward departure. The risk assessment instrument did not adequately account for the fact that six months after committing the underlying rape, defendant committed a sex crime against a child (for which he was also adjudicated a level three offender). This evinces defendant's serious threat to public safety, which outweighs the mitigating factors he cites. We reject defendant's attempt to minimize the second crime on the ground that he committed it before being arrested for the first crime (see People v Gauthier, 100 AD3d 1223, 1225-1226 [3d Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 14, 2017

CLERK