People v. Etheridge

2017 NY Slip Op 2734, 149 A.D.3d 446, 49 N.Y.S.3d 625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2017
• Docket: 3650 30223/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Neil E. Ross, J.), entered May 11, 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]). Defendant’s long period of law abiding conduct after being released from custody was outweighed by the seriousness of the underlying crime, in which defendant repeatedly raped a young child over a period of months. Even if defendant’s clean record for a period of years made him significantly less likely to reoffend, the magnitude of harm that would result if he did reoffend establishes a valid reason for denial of a downward departure (see People v Cabrera, 91 AD3d 479 [2012], lv denied 19 NY3d 801 [2012]).

The remaining mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying sex offense.

Concur — Renwick, J.R, Mazzarelli, Manzanet-Daniels, Feinman and Webber, JJ.