Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Lindsey J. Ramistella of counsel), for respondent.
Decided on February 2, 2012
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.
Gonzalez, P.J., Saxe, Moskowitz, Acosta, Freedman, JJ.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about June 17, 2010, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6--C), unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the adjudication to that of a level two offender, and otherwise affirmed, without costs.
The court improvidently exercised its discretion (see generally People v Johnson, 11 NY3d 416, 421 ) in imposing an upward departure to level three. Initially, we note that defendant's point score of 85 was well below the threshold for a level three adjudication, and that neither the People nor the Board of Examiners of Sex Offenders recommended an upward departure.
The factors cited by the court, viewed in light of all the circumstances of the case, did not warrant an upward departure. Defendant's failure to accept responsibility for the underlying crime, including his denial of the charges at his trial, was adequately accounted for in the risk assessment instrument. Furthermore, the circumstances of defendant's failure to accept responsibility were not of a type that would indicate a strong likelihood of recidivism. Although the fact that defendant's victim was his girlfriend's granddaughter is a reprehensible feature of the underlying offense, it does not, by itself, support an upward departure in this case.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 2, 2012
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