People v Johnson, 2023 NY Slip Op 05694 [221 AD3d 464]

November 14, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Carl Johnson, Appellant.

Twyla Carter, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.

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

Order, Supreme Court, New York County (Steven Statsinger, J.), entered on or about April 9, 2021, 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 record supports the court’s discretionary upward departure to a level two adjudication ( see People v Gillotti , 23 NY3d 841 , 861-862 [2014]). There was clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for by the risk assessment instrument. Defendant’s out-of-state criminal history and “the public and conspicuous nature of the offense, which reflected the defendant’s lack of inhibition and insight into and concern for the inappropriateness of his conduct,” were indicative of a higher likelihood of reoffense and danger to the community ( People v Cruz , 111 AD3d 685 , 686 [2d Dept 2013] [internal quotation marks omitted], lv denied 22 NY3d 860 [2014]). Concur—Manzanet-Daniels, J.P., Oing, Scarpulla, Rodriguez, Higgitt, JJ..