| People v Eddy M. |
| 2020 NY Slip Op 03868 |
| Decided on July 9, 2020 |
| 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 July 9, 2020
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
11800 57/06
v
Eddy M., Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip V. Tisne of counsel), for respondent.
Order, Supreme Court, New York County (Thomas A. Farber, J.), entered on or about October 16, 2018, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-c), unanimously affirmed, without costs.
Clear and convincing evidence supports the court's assessment of 30 points under the risk factor for use of violence (armed with a dangerous instrument). The evidence established that defendant displayed a knife and told the victim to come to him, and then proceeded to rape the victim who was afraid that defendant would stab her. Although defendant was not holding the knife during the actual rape, the evidence amply supports the conclusion that defendant used the knife for the purpose of forcible compulsion in the course of a continuing incident that included the rape (see People v Parker, 145 AD3d 523, 523 [1st Dept 2016], lv denied 29 NY3d 908 [2017]).
The court providently exercised its discretion in declining to grant a downward departure (see generally People v Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or outweighed by aggravating factors, including the seriousness of the underlying offense and defendant's criminal record.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
CLERK