People v. Aristilde

2017 NY Slip Op 7287, 154 A.D.3d 888, 62 N.Y.S.3d 282

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2017
• Docket: 2013-01981
• Status: Published

Opinion

— Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated February 15, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly designated the defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C). Contrary to the defendant’s contention, the People established by clear and convincing evidence that the defendant inflicted physical injury on the complainant, which supported the assessment of 15 points under risk factor 1 (see People v Mitchell, 142 AD3d 542, 543 [2016]; People v Sullivan, 64 AD3d 67, 74 [2009]). Further, the court properly assessed 10 points under risk factor 2 for physical contact under clothing (see People v Dunn, 82 AD3d 856, 857 [2011]; People v Per ser, 29 AD3d 767, 767 [2006]). The court also providently exercised its discretion in denying the defendant’s application for a downward departure from his presumptive risk level designation, as the defendant failed to prove by a preponderance of the evidence any mitigating factor which would warrant a downward departure (see People v Velazquez, 130 AD3d 997, 999 [2015]; People v Wyatt, 89 AD3d 112, 131 [2011]).

Mastro, J.P., Hall, Austin and Sgroi, JJ., concur.