| People v Fultz |
| 2014 NY Slip Op 07773 |
| Decided on November 13, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 13, 2014
Mazzarelli, J.P., Sweeny, Moskowitz, Richter, Feinman, JJ.
13484 4656/07
v
Robert Fultz, Defendant-Appellant.
Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
Order, Supreme Court, Bronx County (John S. Moore, J.), entered on or about January 24, 2012, adjudicating defendant a level three sexually violent felony 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, based on facts established by clear and convincing evidence. "[T]he level suggested by the [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation" (People v Mingo, 12 NY3d 563, 568 n 2 [2009], see also People v Johnson, 11 NY3d 416, 421 [2008]). Here, even though defendant was assessed points under the risk factors for use of violence, sexual contact and the fact that the victim was a stranger, the RAI did not adequately account for the "extreme egregiousness" (People v Ratcliff, 107 AD3d 476 [1st Dept 2013], lv denied 22 NY3d 852 [2013]) of defendant's conduct, which involved a brutal home-invasion gang rape (see e.g. People v Guasp, 95 AD3d 608 [1st Dept 2012], lv denied 19 NY3d 812 [2012]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 13, 2014
CLERK