People v Del Rosario, 36 NY3d at 964 (2020)

2020 NY Slip Op 07688 [36 NY3d 964]
December 22, 2020
Court of Appeals

[*1]

In the Matter of The People of the State of New York, Respondent,
v
Sergio Del Rosario, Appellant.

Argued November 18, 2020; decided December 22, 2020

People v Del Rosario, 170 AD3d 759, affirmed.

{**36 NY3d at 964} OPINION OF THE COURT

Memorandum.

{**36 NY3d at 965}The order of the Appellate Division should be affirmed, without costs. Under the circumstances presented here, we reject the People’s argument that defendant’s appeal is rendered moot by his deportation (see People v Perez, 33 NY3d 1008 [2019]). On the merits, we conclude that it was not an abuse of discretion for the Appellate Division to sustain the upward departure based on the People’s proof that defendant raped the victim in order to take revenge upon someone other than the victim—a risk factor not adequately captured by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary.

Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur; Chief Judge DiFiore taking no part.

Order affirmed, without costs, in a memorandum.