PEOPLE v. KASMOIN (2025)

Order, Supreme Court, New York County (Mark Dwyer, J.), entered on or about August 1, 2019, which adjudicated defendant a level three sexually violent predicate sex 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, based on clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for in the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]), most notably convictions for four prior sexual assaults nearly identical to the underlying sexual assaults here (see People v. Sostenes, 173 A.D.3d 512, 513, 100 N.Y.S.3d 524 [1st Dept. 2019], lv denied 34 N.Y.3d 902, 2019 WL 5445961 [2019]).  Moreover, defendant was already adjudicated a level three offender when he committed the instant offenses, which likewise is an aggravating factor not fully accounted for in the risk assessment instrument (see People v. Faulkner, 122 A.D.3d 539, 539, 997 N.Y.S.2d 410 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 649397 [2015]).  This prior level three offender adjudication outweighs any mitigating factors that defendant cites (id.;  People v. Malena, 186 A.D.3d 1175, 1175–1176, 129 N.Y.S.3d 326 [1st Dept. 2020], lv. denied 36 N.Y.3d 907, 2021 WL 628480 [2021]).  Defendant's perceived difficulty in finding housing with a level three designation does not warrant different result (see People v. McFarland, 120 A.D.3d 1121, 1122, 992 N.Y.S.2d 414 [1st Dept. 2014], lv denied 24 N.Y.3d 1053, 999 N.Y.S.2d 360, 24 N.E.3d 597 [2014]).