| People v Williams |
| 2022 NY Slip Op 00135 |
| Decided on January 11, 2022 |
| 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 and Entered: January 11, 2022
Before: Renwick, J.P., Kapnick, Moulton, Kennedy, Scarpulla, JJ.
Ind. No. 4181/04, 7006/04 Appeal No. 15022 Case No. 2019-4012
v
Harry Williams, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kerry Fulham of counsel), for respondent.
Order, Supreme Court, New York County (Stephen M. Antignani, J.), entered on or about April 10, 2019, 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.
Defendant should have been assessed 15 rather than 30 points under the risk factor for prior crimes. The extra 15 points involved a weapon possession crime committed in 2002, after defendant had committed the underlying sex crimes in 2001, but before defendant was convicted of the sex crimes in 2005. Accordingly, the weapon offense did not qualify under this risk factor as a prior crime (see People v Green, 192 AD3d 927 [2d Dept 2021], lv denied 37 NY3d 910 [2021]; People v Neuer, 86 AD3d 926 [4th Dept 2011], lv denied 17 NY3d 716 [2011]; People v Buggs, 25 Misc 3d 130[A], 2009 NY Slip Op 52117[U] [App Term 9th and 10th Jud Dists 2009]).
Nevertheless, even without those points defendant remains a level three offender, and even with the corrected point score we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or are outweighed by the gravity of the underlying crimes, which were two separate violent gunpoint rapes.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 11, 2022