People v Fenton, 2016 NY Slip Op 08320 [145 AD3d 519]

December 13, 2016

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Sheldon Fenton, Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Beth R. Kublin of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered July 8, 2015, 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.

The People did not meet their burden of establishing, by clear and convincing evidence, that defendant was actually armed with a dangerous instrument during the commission of the offenses ( see People v Pearce , 135 AD3d 722 [2d Dept 2016]). Accordingly, 20 points were incorrectly assessed. However, after those points are deducted, resulting in a point score of 75, defendant remains a level two offender, and we find no basis for a downward departure ( see People v Gillotti , 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument. Concur—Tom, J.P., Friedman, Saxe, Feinman and Kahn, JJ..