People v. Aguilar , 937 N.Y.2d 583 ( 2012 )

The court improvidently exercised its discretion (see generally People v Johnson, 11 NY3d 416, 421 [2008]) in imposing an upward departure to level three. Initially, we note that defendant’s point score of 85 was well below the threshold for a level three adjudication, and that neither the People nor the Board of Examiners of Sex Offenders recommended an upward departure.

The factors cited by the court, viewed in light of all the circumstances of the case, did not warrant an upward departure. Defendant’s failure to accept responsibility for the underlying crime, including his denial of the charges at his trial, was adequately accounted for in the risk assessment instrument. Furthermore, the circumstances of defendant’s failure to accept responsibility were not of a type that would indicate a strong likelihood of recidivism. Although the fact that defendant’s victim was his girlfriend’s granddaughter is a reprehensible feature of the underlying offense, it does not, by itself, support an upward departure in this case. Concur — Gonzalez, EJ., Saxe, Moskowitz, Acosta and Freedman, JJ.