People v. Guardiola

2016 NY Slip Op 6746, 143 A.D.3d 519, 38 N.Y.S.3d 800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 2016
• Docket: 1888 6436/09
• Status: Published

Opinion

Order, Supreme Court, New York County (Larry Stephen, J.), entered on or about August 1, 2013, which adjudicated defendant a risk level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant’s prior felony sex crime conviction automatically resulted in an override to risk level three (see People v Howard, 27 NY3d 337, 342 [2016]), and the court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument, and the record does not establish any basis for a downward departure. Defendant’s participation in sex offender treatment while in prison was adequately taken into account, and we reject his assertion that he poses a diminished risk of reoffense (see e.g. People v McNeely, 124 AD3d 433 [1st Dept 2015], lv denied 25 NY3d 908 [2015]).

Concur — Friedman, J.P., Richter, Feinman, Kapnick and Kahn, JJ.