People v. McNeely

124 A.D.3d 433, 998 N.Y.S.2d 381

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 2015
• Docket: 13908 531/08
• Status: Published

Opinion

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about September 13, 2011, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). Defendant’s successful completion of sex offender treatment while in prison was adequately taken into account by the risk assessment instrument. Defendant’s assertion that he poses a diminished risk of reoffense, and thus should receive a downward departure, is without merit (see People v Rodriguez, 67 AD3d 596 [1st Dept 2009], lv denied 14 NY3d 706 [2010]). Moreover, neither defendant’s age nor his purportedly “stable lifestyle” prior to the underlying conviction warranted a downward departure, given his abhorrent crime of repeatedly raping his own daughter over a period of years.

Concur— Sweeny, J.P., Andrias, Moskowitz, Richter and Clark, JJ.