People v Benvenutti

People v Benvenutti 2018 NY Slip Op 07274 Decided on October 30, 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 October 30, 2018
Sweeny, J.P., Mazzarelli, Kahn, Oing, Singh, JJ.
7496 3092/00 6271/00

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

v

Alberto Benvenutti, Defendant-Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Meghan Callagee O'Brien of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about May 18, 2017, 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 record supports the court's discretionary upward departure (see People v Gillotti, 23 NY3d 841, 861-62 [2014]). Clear and convincing evidence established aggravating factors that were not adequately taken into account in the risk assessment instruments. Defendant committed two egregious sexual assaults against strangers, demonstrating a pattern of predatory conduct indicative of sexual recidivism (see e.g. People v Roman, 143 AD3d 476, 477 [1st Dept 2016], lv denied 28 NY3d 912 [2017]). The mitigating factors cited by defendant, such as rehabilitation while incarcerated, were adequately accounted for by the risk assessment instruments (see People v Watson, 112 AD3d 501, 503 [1st Dept 2013], lv denied 22 NY3d 863 [2014]), and in any event did not outweigh the aggravating factors.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2018

CLERK