PEOPLE v. GUASP

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

The PEOPLE of the State of New York, Respondent, v. Jose GUASP, Defendant–Appellant.

Decided: May 15, 2012

MAZZARELLI, J.P., CATTERSON, MOSKOWITZ, RICHTER, MANZANET–DANIELS, JJ. Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Karinna M. Arroyo of counsel), for respondent.

Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about July 27, 2010, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.

 The court properly assessed 15 points under the risk factor for drug or alcohol abuse.   This was established by the results of a screening test for alcoholism and defendant's admissions to corrections officials regarding his drug use (see e.g. People v. Johnson, 77 A.D.3d 548, 909 N.Y.S.2d 716 [2010], lv. denied 16 N.Y.3d 705, 2011 WL 536611 [2011] ).

 In any event, regardless of whether defendant's correct point score was 55, as he claims, or 70, as the court found, the record supports the court's discretionary upward departure to level two.   The court properly determined that although defendant received points relating to the facts of the underlying sex crime, the risk assessment instrument failed to adequately take into account the crime's unusual brutality and heinous quality (see e.g. People v. Miller, 48 A.D.3d 774, 854 N.Y.S.2d 138 [2008], lv. denied 10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008];  People v. Sanford, 47 A.D.3d 454, 848 N.Y.S.2d 875, lv. denied 10 N.Y.3d 707, 858 N.Y.S.2d 655, 888 N.E.2d 397 [2008] ).   These aggravating factors outweighed the mitigating factors cited by defendant.