PEOPLE v. APONTE (2024)

Order, Supreme Court, New York County (Abraham Clott, J.), entered on or about March 2, 2016, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously modified, as a matter of discretion in the interest of justice, to the extent of remanding for a further hearing on defendant's request for a downward departure, and otherwise affirmed, without costs.

The court properly assessed defendant 15 points under the risk factor for supervision.  According to the case summary, defendant was released from incarceration without supervision, which requires imposition of 15 points in the risk assessment instrument.  The case summary was sufficient, by itself, to support the court's assessment of these points (see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009];  People v. Postelli, 136 A.D.3d 514, 514, 24 N.Y.S.3d 645 [1st Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3151481 [2016]).  Defendant's argument, raised for the first time on appeal, that defendant likely had some form of supervision after his release from incarceration, without more, does not overcome the weight of the case summary (see e.g. People v. Irizarry, 124 A.D.3d 429, 429, 998 N.Y.S.2d 379 [1st Dept. 2015], lv denied 25 N.Y.3d 907, 2015 WL 2237215, 10 N.Y.S.3d 527, 32 N.E.3d 964 [2015]).

However, because the court erroneously declined to address defendant's application for a downward modification, we remand the matter for a further hearing addressing the application, his current medical condition and living situation (People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014];  People v. Hosear, 134 A.D.3d 633, 21 N.Y.S.3d 611 [1st Dept. 2015]).