People v. James

103 A.D.3d 588, 959 N.Y.S.2d 910

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered November 18, 2011, 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 properly exercised its discretion in denying defendant’s application for a downward departure (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied sub nom. Knox v New York 558 US 1011 [2009]; People v Mingo, 12 NY3d 563, 568 n 2 [2009]). The mitigating factors asserted by defendant were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of the underlying sex crimes against a child (see e.g. People v Melendez, 83 AD3d 448 [1st Dept 2011]). Although defendant describes his sexual relationship with the victim as consensual, we note that it began when the victim was only 11 years old. Concur—Tom, J.P., Sweeny, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.