The People of the State of New York, Respondent, v. Francisco Velasquez, Defendant–Appellant. (2016)

Supreme Court, Appellate Division, First Department.

The People of the State of New York, Respondent, v. Francisco Velasquez, Defendant–Appellant.

1994

Decided: October 20, 2016

Sweeny, J.P., Renwick, Manzanet–Daniels, Gische, Webber, JJ.

Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Milbank Tweed Hadley & McCloy LLP, New York (Alexis Kim of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.

Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered January 3, 2013, 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. There was clear and convincing evidence to establish an aggravating factor that was not adequately accounted for by the risk assessment instrument (see People v. Gillotti, 23 NY3d 841, 861–862 [2014] ). Defendant's possession of numerous and repellent images of child pornography was sufficiently linked to a risk of reoffense (see People v. Hughes, 71 AD3d 579, 579–80 [1st Dept 2010], lv denied 14 NY3d 713 [2010] ). Moreover, the mitigating factors cited by defendant were accounted for in the risk assessment instrument and were outweighed by the seriousness of his conduct. We have considered and rejected defendant's remaining arguments.

CLERK

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