PEOPLE v. JOHNSON (2023)

Order, Supreme Court, New York County (Steven Statsinger, J.), entered on or about April 9, 2021, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure to a level two adjudication (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  There was clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for by the risk assessment instrument.  Defendant's out-of-state criminal history and “the public and conspicuous nature of the offense, which reflected the defendant's lack of inhibition and insight into and concern for the inappropriateness of his conduct,” were indicative of a higher likelihood of reoffense and danger to the community (People v. Cruz, 111 A.D.3d 685, 686, 974 N.Y.S.2d 538 [2d Dept. 2013] [internal quotation marks omitted], lv denied 22 N.Y.3d 860, 2014 WL 148759 [2014]).