PEOPLE v. BALIC (2008)

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

The PEOPLE of the State of New York, Respondent, v. Dzemil BALIC, Defendant-Appellant.

Decided: June 03, 2008

LIPPMAN, P.J., MAZZARELLI, WILLIAMS, SWEENY, ACOSTA, JJ.

Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Lucy Jane Lang of counsel), for respondent.

Order, Supreme Court, New York County (Brenda Soloff, J.), entered on or about September 14, 2005, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

As the People concede, certain points were incorrectly assessed and defendant's presumptive risk level should thus be level one. Nevertheless, the record supports the court's alternate conclusion that an upward departure to level two is warranted. Clear and convincing evidence established aggravating factors that were not otherwise adequately taken into account by the risk assessment guidelines (see e.g. People v. Brown, 45 A.D.3d 1123, 846 N.Y.S.2d 678 [2007] ). Defendant's background includes a violent sexual attack on a child, and a pattern of misconduct displaying a likelihood of recidivism.

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