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 April 25, 2013 Andrias, J.P., Saxe, DeGrasse, Richter, Gische, JJ.
Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered May 24, 2011, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
A level three adjudication is appropriate. Both the court's upward departure to level three, which formed an alternative basis for the adjudication, and its refusal to grant a downward departure were provident exercises of discretion. "[T]he level suggested by the [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation" (People v Mingo, 12 NY3d 563, 568 n 2 ; see also People v Johnson, 11 NY3d 416, 421 ).
The fact that defendant consciously chose a victim who was asleep and thus was particularly vulnerable is a significant aggravating factor. Furthermore, defendant has a serious criminal record, and the fact that he committed sex crimes against children in separate incidents, years apart, suggests a dangerous propensity. The mitigating factors asserted by defendant in support of his request for a downward departure were adequately taken into account by the risk assessment instrument, and were outweighed by the aggravating factors (see e.g. People v Melendez, 83 AD3d 448 [1st Dept 2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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