| People v Brown |
| 2018 NY Slip Op 04675 |
| Decided on June 26, 2018 |
| 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 June 26, 2018
Renwick, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
477/11 1718/11
v
Daniel Brown, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about March 7, 2017, 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.
Clear and convincing evidence supported the court's point assessments for defendant's history of drug or alcohol abuse, which included a DWI conviction and possession of a substantial amount of cocaine, for his failure to accept responsibility based, among other things, on his denial of responsibility throughout most of his incarceration, and for his conduct while confined, including his possession of pornography and a weapon.
The record also supports the court's alternative determination that a discretionary upward departure was warranted. The risk assessment instrument did not adequately account for the extreme brutality of defendant's attacks on the two victims and aggravating surrounding circumstances (see e.g. People v Sanford, 47 AD3d 454 [1st Dept 2008], lv denied 10 NY3d 707 [2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 26, 2018
CLERK