PEOPLE v. DAVIS (2019)

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about June 18, 2014, which granted defendant's motion to reargue, and upon reargument, adhered to a prior order, (same court, Seth L. Marvin, J.), entered on or about March 5, 2014, 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.  Appeal from the March 5, 2014 order, unanimously dismissed, without costs, as academic.

Grand jury minutes and a victim impact statement provided reliable evidence that supported the court's determination in all respects (see People v. Sincerbeaux, 27 N.Y.3d 683, 687–688, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016];  People v. Mingo, 12 N.Y.3d 563, 572–574, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]).  Nothing in the record casts doubt on the veracity of the victim's account of defendant's extensive misconduct, and the disposition of defendant's underlying case does not warrant a different conclusion (see People v. Epstein, 89 A.D.3d 570, 571, 933 N.Y.S.2d 239 [1st Dept. 2011]).  The record also establishes that defendant received sufficient access to the relevant minutes.

Although defendant's correct point score is 95, rather than 105 as found by the court, defendant's presumptive risk level remains at level two, and even with that reduction, the record supports the court's discretionary upward departure to level three.  The upward departure was based on clear and convincing evidence that there were aggravating factors not sufficiently taken into account by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Contrary to defendant's assertion, the court did not consider the egregiousness of defendant's conduct as a matter of “moral outrage,” but for its bearing on defendant's likelihood of reoffense and the potential harm in the event of his reoffense.  The mitigating factors defendant relies on were outweighed by the aggravating factors noted by the court.

We have considered and rejected defendant's remaining arguments.