People v. Diaz

2023 NY Slip Op 05100

Opinion

People v Diaz (2023 NY Slip Op 05100)

People v Diaz

2023 NY Slip Op 05100

Decided on October 10, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 10, 2023
Before: Manzanet-Daniels, J.P., Gesmer, González, Kennedy, O'Neill Levy, JJ.

Ind. No. 1867/17 Appeal No. 746 Case No. 2019-03478

[*1]The People of the State of New York, Respondent,

v

Angel Diaz, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Nathan R. Brown of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.

Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered on or about March 18, 2019, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Clear and convincing evidence established that defendant sexually abused the victim when she was younger than 10 years old, as the victim testified before the grand jury that the abuse began when she was eight and the case summary supported this testimony (Correction Law § 168-n[3]; see People v Mingo, 12 NY3d 563, 572 [2009]). Furthermore, Supreme Court properly assessed points under the risk factor for a history of substance abuse, as not only did defendant admit that he began using marijuana daily in his late adolescence, but also had prior convictions for drug-related offenses (see People v Fernandez, 126 AD3d 453, 453 [1st Dept 2015], lv denied 25 NY3d 911 [2015]).

Supreme Court providently exercised its discretion in declining to grant a downward departure. The alleged mitigating factors were either adequately taken into account by the risk assessment instrument or were outweighed by seriousness of the underlying offense, which was perpetrated against a young child (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Cabrera, 166 AD3d 419, 419 [1st Dept 2018]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 10, 2023