People v. Hernandez

182 N.Y.S.3d 901, 2023 NY Slip Op 01067

Opinion

People v Hernandez (2023 NY Slip Op 01067)

People v Hernandez

2023 NY Slip Op 01067

Decided on February 28, 2023

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: February 28, 2023
Before: Kern, J.P., Oing, Kennedy, Mendez, Pitt-Burke, JJ.

Ind No. 939/16 Appeal No. 17413 Case No. 2018-1414

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

v

Hector Hernandez, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Amy Donner of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Kalani A. Browne of counsel), for respondent.

Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered on or about June 2, 2017, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People established by clear and convincing evidence that defendant and the victim were strangers, warranting the assessment of 20 points under the corresponding risk factor. The evidence showed that although they were mutually acquainted with a third person, the victim met defendant for the first time on the day he raped her (see People v Barcliff, 165 AD3d 533 [1st Dept 2018], lv denied 32 NY3d 917 [2019]; People v Pollack, 159 AD3d 435 [1st Dept 2018], lv denied 31 NY3d 909 [2018]).

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 cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the gravity of the underlying forcible rape of a 13-year-old child. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 28, 2023