People v. Rodriguez
| Decision Date | 23 February 2022 |
| Docket Number | 2020–05780 |
| Citation | 202 A.D.3d 1114,163 N.Y.S.3d 252 |
| Parties | PEOPLE of State of New York, respondent, v. Jimmy RODRIGUEZ, appellant. |
| Court | New York Supreme Court — Appellate Division |
202 A.D.3d 1114
163 N.Y.S.3d 252
PEOPLE of State of New York, respondent,
v.
Jimmy RODRIGUEZ, appellant.
2020–05780
Supreme Court, Appellate Division, Second Department, New York.
Submitted—December 10, 2021
February 23, 2022
Thomas N.N. Angell, Poughkeepsie, NY (Lauren A. Jaeb of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Dutchess County (Peter M. Forman, J.), dated July 13, 2020,
which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of attempted criminal sexual act in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law article 6–C), the County Court assessed the defendant a total of 60 points on the risk assessment instrument, which corresponded with a designation as a presumptive level one sex offender. The court granted the People's request for an upward departure, and, in an order dated July 13, 2020, designated the defendant a level two sex offender. The defendant appeals.
An upward departure from a presumptive risk classification is permitted when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Jackson, 139 A.D.3d 1031, 1032, 31 N.Y.S.3d 598 ; People v. Wyatt, 89 A.D.3d 112, 121, 931 N.Y.S.2d 85 ). "After such a factor is identified, and after the...
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...risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence" ( People v. Rodriguez, 202 A.D.3d 1114, 1115, 163 N.Y.S.3d 252 ). Therefore, the court must first "determine whether the aggravating circumstances alleged to show a higher likeliho......
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