People v. Bonnet

212 A.D.3d 445

179 N.Y.S.3d 571 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Luis BONNET, Defendant–Appellant.

17056

Ind. No. 30191/17

Case No. 2018-2336

Supreme Court, Appellate Division, First Department, New York.

Entered January 10, 2023

Twyla Carter, The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Christian Rose of counsel), for respondent.

Acosta, P.J., Webber, Moulton, Shulman, Higgitt, JJ.

Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about February 27, 2018, 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.

The assessment of points for both unsatisfactory conduct and release without supervision, arising, respectively, from defendant's violation of probation and his resulting reincarceration, did not constitute double counting (see People v. Cruz, 139 A.D.3d 601, 602, 34 N.Y.S.3d 5 [1st Dept. 2016] ). In any event, regardless of defendant's correct point score, the court's upward departure to level three was justified by the egregiousness of the underlying offense and defendant's extensive criminal history, including both prior and subsequent sexual offenses. These factors indicated a grave risk of sexual reoffense that was not adequately taken into account by the risk assessment instrument (see e. g. People v. Roman, 143 A.D.3d 476, 38 N.Y.S.3d 430 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 53618 [2017] ; People v. Faulkner, 122 A.D.3d 539, 997 N.Y.S.2d 410 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 649397 [2015] ).

Defendant did not...