People v. Burton

71 A.D.3d 468, 894 N.Y.S.2d 872

Opinion

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about December 18, 2007, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously, affirmed, without costs.

The hearing court providently exercised its discretion (see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 418, 421 [2008]) in denying defendant’s request for a downward departure. Although defendant argues that his age and physical condition would militate against his reoffending, these factors did not prevent him from committing a sexual offense while incarcerated (see People v Johnson, 44 AD3d 571 [2007], lv denied 10 NY3d 701 [2008]; People v Adams, 44 AD3d 1020 [2007], 9 NY3d 818 [2008]). Defendant’s claim that, notwithstanding his guilty plea, he was innocent of the underlying rape is an inappropriate basis for a downward departure. “Facts previously . . . elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n [3]). Concur — Tom, J.P., Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ.