People v. Edwards

135 A.D.3d 593, 22 N.Y.S.3d 863

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 2016
• Docket: 16723 2271/01
• Status: Published

Opinion

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered February 25, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed defendant points under the risk factors for prior criminal history and recency of prior offense, even though he had not yet been sentenced on the relevant prior conviction at the time he committed the underlying sex offense (see People v Franco, 106 AD3d 417, 417 [1st Dept 2013], lv denied 21 NY3d 863 [2013]).

The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors alleged by defendant were already taken into account in the risk assessment instrument, and the record does not establish any basis for a downward departure, given the seriousness of defendant’s sex offense. Concur — Sweeny, J.P., Renwick, Manzanet-Daniels and Gische, JJ.