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The People of the State of New York, Respondent v. Dorom Yomtov

New York Supreme and/or Appellate Courts Appellate Division, First Department


April 2, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DOROM YOMTOV, DEFENDANT-APPELLANT.

People v Yomtov

Decided on April 2, 2013

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.

Friedman, J.P., Sweeny, Renwick, Richter, Roman, JJ.

Order, Supreme Court, New York County (John Cataldo, J.), entered on or about December 18, 2008, which adjudicated defendant a level two sexually violent offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 10 points under the risk factor for failing to accept responsibility. Defendant made efforts to shift blame to the child victim that evinced a lack of genuine acceptance of responsibility (see People v Teagle, 64 AD3d 549 [2d Dept 2009]; People v Baker, 57 AD3d 1472 [4th Dept 2008], lv denied 12 NY3d 706 [2009]).

In any event, the record supports the court's determination that, regardless of whether defendant's correct point score should be 65 or 75, an upward departure to level two is warranted, based on the seriousness of defendant's course of conduct toward a child and of the surrounding circumstances (see e.g. People v Mantilla, 70 AD3d 477, 478 [2010], lv denied 15 NY3d 706 [2010]). This egregiousness of defendant's behavior was an "aggravating...factor of a kind, or to a degree, that [was] not otherwise adequately taken into account by the guidelines" (People v Johnson, 11 NY3d 416, 421 [2008]).

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

ENTERED: APRIL 2, 2013

CLERK

20130402

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