People v. Eaddy

2017 NY Slip Op 5573, 152 A.D.3d 427, 58 N.Y.S.3d 362

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 2017
• Docket: 4438 2923/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Marcy L. Kahn, J.), entered July 16, 2015, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]), and we find no basis to substitute our own discretion in this regard. The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying crime, which consisted of repeated sexual abuse of a 10-year-old child over an extended period of time.

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and the court lacked discretion to do otherwise (see People v Bullock, 125 AD3d 1 [1st Dept 2014], lv denied 24 NY3d 915 [2015]). We have considered and rejected defendant’s constitutional arguments.

Concur — Friedman, J.P., Renwick, Andrias, Moskowitz and Gesmer, JJ.