PEOPLE v. WINFIELD (2014)

The PEOPLE of the State of New York, Respondent, v. Samuel WINFIELD, Defendant–Appellant.

Decided: November 18, 2014

FRIEDMAN, J.P., ACOSTA, SAXE, MANZANET–DANIELS, GISCHE, JJ.

Steven Banks, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.

Order, Supreme Court, New York County (Rena K. Uviller, J.), entered on or about September 9, 2011, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court's upward departure to level three was supported by clear and convincing evidence of aggravating factors not adequately taken into account by the risk assessment instrument (see e.g. People v. Jones, 114 AD3d 550 [1st Dept 2014], lv denied 23 NY3d 903 [2014] ). As noted by the Board of Examiners of Sex Offenders, the risk assessment instrument did not adequately account for the fact that defendant's numerous acts of sexual abuse of his three young relatives occurred over the course of eight years. Defendant's threat made to at least one victim in order to deter her from disclosing the abuse further justified the upward departure (see id.). In addition, defendant had already scored the maximum 105 points for a level two offender (see People v. Otero, 100 AD3d 411 [1st Dept 2012], lv denied 20 NY3d 863 [2013] ).̌

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