PEOPLE v. VIVES (2008)

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

The PEOPLE of the State of New York, Respondent, v. Daniel VIVES, Defendant-Appellant.

Decided: December 16, 2008

ANDRIAS, J.P., NARDELLI, SWEENY, DeGRASSE, FREEDMAN, JJ.

Steven Banks, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Susan Gliner of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about March 15, 2007, which adjudicated defendant a level three sex offender under 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 three sex offender adjudication. There was ample evidence to support aggravating factors not adequately accounted for in the risk assessment instrument (see e.g. People v. O'Flaherty, 23 A.D.3d 237, 806 N.Y.S.2d 11 [2005], lv. denied 6 N.Y.3d 705, 812 N.Y.S.2d 34, 845 N.E.2d 466 [2006] ), and there was no improper double counting. These aggravating factors demonstrated that defendant is a dangerous pedophile with a grave risk of reoffending, notwithstanding his conclusory claims of having been rehabilitated during his incarceration.

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