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Appellate Term, First Department: April 13, 2018

Appellate Term, First Department: April 13, 2018

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By: Ling-Cohan, J.P., Cooper, Edmead, JJ.17-182. THE PEOPLE OF THE STATE OF NEW YORK, res, v. BRIAN ABNER, def-app — Order (Julio Rodriguez III, J.), dated August 24, 2016, affirmed.The record supports the court’s discretionary upward departure to level three. There was clear and convincing evidence of aggravating factors not taken into account by the risk assessment instrument (see People v. Gillotti, 23 NY3d 841, 861-862 [2014]; People v. Roman, 143 AD3d 476 [2016], lv denied 28 NY3d 912 [2017]). The assessment of the maximum points available for defendant’s criminal history was not enough to reflect the extent of that history, including numerous convictions for sex offenses in Florida, California, Nevada and New York, which demonstrate a high risk of sexual recidivism (see People v. Taylor, 154 AD3d 524 [2017], lv denied 30 NY3d 909 [2018]; People v. Collins, 127 AD3d 568, 568-569 [2015], lv denied 26 NY3d 901 [2015]; People v. Goodwin, 126 AD3d 610, 611 [2015], lv denied 25 NY3d 913 [2015]). Moreover, defendant committed the underlying crime after already having been adjudicated a level three offender in New York on a prior case (see People v. Faulkner, 122 AD3d 539 [2014], lv denied 24 NY3d 915 [2015]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.April 13, 2018

15-253. THE PEOPLE OF THE STATE OF NEW YORK, res, v. DIMITRIUS ADAMS, def-app — Judgment of conviction (Kevin B. McGrath, J.), rendered October 1, 2014, reversed, on the law, and the accusatory instrument dismissed.Reversal of the judgment convicting defendant of criminal possession of marijuana in the fifth degree (see Penal Law 221.10[1]) and dismissal of that charge is mandated since, as the People concede, the allegations in the accusatory instrument were jurisdictionally insufficient to meet the “public place” element of the offense.In view of the foregoing, we reach no other issue.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.April 13, 2018

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