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PEOPLE v. CAPELLAN

1673/11, 2569, 2568, 2567, 2566.

145 A.D.3d 636 (2016)

2016 NY Slip Op 08949

42 N.Y.S.3d 819

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. VICTOR CAPELLAN, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided December 29, 2016.

The court's discretionary upward departure was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument (see e.g. People v Sherard, 73 A.D.3d 537 [1st Dept 2010], lv denied 15 N.Y.3d 707 [2010]). Contrary to defendant's argument, the court did not rely solely on defendant's psychiatric illness. Instead, it cited a...

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