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People v. Vives

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 16, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DANIEL VIVES, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about March 15, 2007, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

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.

Andrias, J.P., Nardelli, Sweeny, DeGrasse, Freedman, JJ.

146/02

The record supports the court's discretionary upward departure to a level three sex offender adjudication. There was ample evidence to support aggravating factors not adequately accounted for in the risk assessment instrument (see e.g. People v O'Flaherty, 23 AD3d 237 [2005], lv denied 6 NY3d 705 [2006]), and there was no improper double counting. These aggravating factors demonstrated that defendant is a dangerous pedophile with a grave risk of reoffending, notwithstanding his conclusory claims of having been rehabilitated during his incarceration.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081216

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