NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 19, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LUIS MANGUAL, DEFENDANT-APPELLANT.
Order, Supreme Court, New York County (Arlene R. Silverman, J.), entered on or about January 9, 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.
Tom, J.P., Moskowitz, Acosta, Freedman, JJ.
Although the court did not use the expression "upward departure," it made clear that, in view of the extreme brutality of the underlying sex crime, it intended to depart upwardly to level three even if defendant's point score, standing alone, would support only a level two adjudication. This upward departure was based upon clear and convincing evidence of aggravating factors of a degree not taken into account by the risk assessment instrument and guidelines (see e.g. People v Miller, 48 AD3d 774 , lv denied 10 NY3d 711 ; People v Sanford, 47 AD3d 454 , lv denied 10 NY3d 707 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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