The PEOPLEof the State of New York, Respondent, v. DEL ROSARIO (2020)

Court of Appeals of New York.

The PEOPLEof the State of New York, Respondent, v. Sergio DEL ROSARIO, Appellant.

No. 89

Decided: December 22, 2020

Clare J. Degnan, The Legal Aid Society of Westchester County, White Plains (Debra A. Cassidy and Salvatore A. Gaetani of counsel), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains (Christine DiSalvo, Steven A. Bender and William C. Milaccio of counsel), for respondent.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be affirmed, without costs. Under the circumstances presented here, we reject the People's argument that defendant's appeal is rendered moot by his deportation (see People v. Perez, 33 N.Y.3d 1008, 101 N.Y.S.3d 733, 125 N.E.3d 149 [2020] ). On the merits, we conclude that it was not an abuse of discretion for the Appellate Division to sustain the upward departure based on the People's proof that defendant raped the victim in order to take revenge upon someone other than the victim—a risk factor not adequately captured by the by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary.

Order affirmed, without costs, in a memorandum.

Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.; Chief Judge DiFiore took no part.

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