People v Hamilton

People v Hamilton 2016 NY Slip Op 03866 Decided on May 18, 2016 Appellate Division, Second 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 18, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.
2015-07962
2015-07963

[*1]People of State of New York, respondent,

v

Rashaad Hamilton, appellant.

Clare J. Degnan, White Plains, NY (Venessa Melly of counsel), for appellant.

James A. McCarty, Acting District Attorney, White Plains, NY (Jennifer Spencer and Laurie Sapakoff of counsel), for respondent.

DECISION & ORDER

Appeals by the defendant from (1) a decision of the Supreme Court, Westchester County (Cacace, J.), dated April 29, 2015, and (2) an order of the same court dated April 28, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the appeal from the decision is dismissed without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, the Supreme Court properly assessed 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) following his conviction of promoting an obscene sexual performance by a child (see People v Gillotti, 23 NY3d 841; People v Johnson, 11 NY3d 416; People v Granzeier, 137 AD3d 989).

Further, the Supreme Court properly determined that the People presented clear and convincing evidence of aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary which tend to establish a higher likelihood of reoffense or danger to the community (see People v Wyatt, 89 AD3d 112, 121). Upon making such a determination, the Supreme Court providently exercised its discretion in granting the People's application for an upward departure (see People v Gillotti, 23 NY3d at 861; People v Wyatt, 89 AD3d at 123). Accordingly, the defendant was properly designated a level three sex offender.

MASTRO, J.P., RIVERA, AUSTIN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court