People v Ruiz, 2024 NY Slip Op 04744 [231 AD3d 411]

October 1, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Daniel Ruiz, Appellant.

Twyla Carter, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Sarah Lubin of counsel), for respondent.

Order, Supreme Court, New York County (Ellen Biben, J.), entered on or about September 8, 2022, 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 record supports the court’s discretionary upward departure to a risk level three adjudication ( see People v Gillotti , 23 NY3d 841 , 861-862 [2014]). The court properly determined that the points assessed under risk factor 9 related to defendant’s criminal history did not adequately take into account defendant’s pattern of prior sex offenses, which involved similar forcible touching of female strangers ( see People v Carmona , 212 AD3d 537 [1st Dept 2023], lv denied 39 NY3d 913 [2023]). The mitigating factors cited by defendant do not warrant a different result. Concur—Moulton, J.P., Mendez, Higgitt, O’Neill Levy, Michael, JJ..