People v. Massey

136 A.D.3d 469, 24 N.Y.S.3d 505

Opinion

— Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about October 1, 2014, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Nonwithstanding that the court incorrectly assessed 20 points under the risk factor for physical helplessness, the court properly applied the presumptive override for infliction of serious physical injury, which results in a level three adjudication independent of any point assessments.

The court properly exercised its discretion in denying defendant’s request for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately accounted for in the risk assessment instrument or, in any event, were outweighed by the seriousness of the underlying conduct.

Concur — Mazzarelli, J.P., Moskowitz, Feinman and Gische, JJ.