People v. Franceschini

2022 NY Slip Op 06445

Opinion

People v Franceschini (2022 NY Slip Op 06445)

People v Franceschini

2022 NY Slip Op 06445

Decided on November 15, 2022

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: November 15, 2022
Before: Gische, J.P., Kapnick, Kern, Gesmer, Higgitt, JJ.

Ind. No. 2297/04 Appeal No. 16635 Case No. 2019-05271

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

v

Vinerio Franceschini, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Simone Greenberg of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of counsel), for respondent.

Order, Supreme Court, Bronx County (Steven L. Barrett, J,), entered on or about August 15, 2019, which adjudicated defendant a level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently exercised its discretion in declining to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately accounted for by the risk assessment instrument, or were outweighed by the seriousness of the underlying offense and defendant's prior record of similar offenses. Defendant failed to show that his rehabilitation and response to sex offender treatment were so exemplary or exceptional as to warrant a departure (see People v Gomez, 192 AD3d 602 [1st Dept 2021], lv denied 37 NY3d 910 [2021]). The underlying crime, committed at a time when defendant had already been adjudicated a level three sex offender, resulted in defendant's third conviction for sex crimes against young children. Defendant's history presents a grave threat to the safety of children (see e.g. People v Gillette, 189 AD3d 512 [1st Dept 2020]) and defendant failed to demonstrate that his age and health problems would significantly reduce that risk.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 15, 2022