People v Manley

People v Manley 2022 NY Slip Op 05609 Decided on October 06, 2022 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: October 06, 2022
Before: Renwick, J.P., Oing, González, Mendez, Shulman, JJ.
Ind No. 1204/13 Appeal No. 16365 Case No. 2018-96

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

v

Eric Manley, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about May 11, 2017, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed an additional five points for physical injury under the risk factor for use of violence, based on the victim's grand jury testimony that she sustained abrasions and swelling after defendant pushed her to the ground, sought medical treatment, and was prescribed pain medication (see People v Chiddick, 8 NY3d 445, 447 [2007]; People v Oree, 58 AD3d 473, 474 [1st Dept 2009], lv denied 12 NY3d 819 [2009]).

In any event, regardless of whether defendant's correct point score is 60 or 65 the record supports the court's discretionary upward departure to level two, based on clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for by the risk assessment instrument (see People v Gillotti, 23 NY3d 841, 861-862 [2014]). Defendant's serious criminal record, his mental illness and other background factors were indicative of a grave risk of reoffense (see People v Richardson, 101 AD3d 837, 839 [2d Dept 2012]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 6, 2022