People v Smith

People v Smith 2018 NY Slip Op 03214 Decided on May 3, 2018 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 May 3, 2018
Acosta, P.J., Friedman, Manzanet-Daniels, Kapnick, Kern, JJ.
6462 4643/99

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

v

Paul Smith, Defendant-Appellant.

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

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

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about May 6, 2014, 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.

Each of the court's point assessments at issue was supported by clear and convincing evidence. The court correctly assessed points for use of a dangerous instrument and multiple victims based on grand jury testimony (see People v Sincerbeaux, 27 NY3d 683, 687 [2016]) establishing that defendant cut one victim with a knife or other edged weapon, and that he attempted to rape a second victim. The court properly assessed points for a history of drug and alcohol abuse, based upon defendant's admission to probation officials. Any period of prolonged abstinence was accounted for by his incarceration (see People v Watson, 112 AD3d 501, 503 [1st Dept 2013], lv denied 22 NY3d 863 [2014]). Defendant's challenge to points contained in the risk assessment instrument but not assessed by the court is academic.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 3, 2018

CLERK