People v. Carreon

120 A.D.3d 1151, 992 N.Y.S.2d 883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2014
• Docket: 13053 5456/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about November 21, 2012, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion in declining to grant a downward departure (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 421 [2008]). Defendant did not demonstrate by a preponderance of the evidence any mitigating factors not already taken into account in the risk assessment instrument that would warrant a downward departure (see People v Gillotti, 23 NY3d 841, 860-861 [2014]). While working as a home health care attendant for a disabled person, he committed sex offenses against that person’s mentally-impaired teenaged sister. We do not find that this defendant’s age requires a downward departure to level one, when viewed in light of all the circumstances (see e.g. People v Harrison, 74 AD3d 688 [1st Dept 2010], lv denied 15 NY3d 711 [2010]).

We have considered and reject defendant’s remaining arguments.

Concur — Mazzarelli, J.P, Andrias, Moskowitz, ManzanetDaniels and Clark, JJ.