People v Feliciano

People v Feliciano 2021 NY Slip Op 01858 Decided on March 25, 2021 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 and Entered: March 25, 2021
Before: Manzanet-Daniels, J.P., Kern, Moulton, Shulman, JJ.
Ind No. 4308/01 Appeal No. 13444 Case No. 2019-05043

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

v

Edwin Feliciano, Defendant-Appellant.

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

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

Order, Supreme Court, New York County (Cassandra M. Mullen, J.), entered on or about October 31, 2019, 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 based on defendant's extensive criminal history, which, among other things, included four additional first-degree rape convictions that the risk assessment instrument did not take into account because the convictions occurred after the conviction in the underlying case (see e.g. People v Wright, 185 AD3d 506 [1st Dept 2020]). Defendant's very extensive history of violent sexual assaults outweighed the mitigating factors he cites, including his positive response to treatment (see e.g. People v Fair, 157 AD3d 645 [1st

Dept 2018], lv denied 31 NY3d 906 [2018]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 25, 2021