| People v Cushnie |
| 2019 NY Slip Op 07034 |
| Decided on October 1, 2019 |
| 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 October 1, 2019
Friedman, J.P., Tom, Webber, Gesmer, Oing, JJ.
9975 30156/17
v
Donovan Cushnie, 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 (R. Jeannie Campbell-Urban of counsel), for respondent.
Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about November 29, 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.
The court's discretionary 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 NY3d 841, 861 [2014]), including defendant's repeated failure to register as a sex offender as required by the state where he committed the underlying sex offense, and his violation of his parole by absconding. The assessment of points under the risk factor for conduct while under supervision did not reflect the egregiousness of defendant's behavior, which demonstrates his inability to comply with legal requirements. The mitigating factors defendant raises are outweighed by the aggravating factors noted by the court (see e.g. People v Corn, 128 AD3d 436, 437 [1st Dept 2015]). We have considered and rejected defendant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 1, 2019
CLERK