People v. Montgomery

Appellate Division of the Supreme Court of New York

People v. Montgomery

117 A.D.3d 521, 985 N.Y.S.2d 243

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 13, 2014

StatusPublished

This text of 117 A.D.3d 521 (People v. Montgomery) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Montgomery, 117 A.D.3d 521, 985 N.Y.S.2d 243 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Carol Berkman, J.), rendered June 27, 2012, 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.

The court properly assessed points for defendant’s failure to accept responsibility, based on his statements recorded in the presentence report reflecting an attempt to minimize his fault in the offense. In any event, regardless of whether defendant’s correct point score is 110 or 120 points, he would still be a presumptive level three offender, and we find no basis 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 Johnson, 11 NY3d 416, 418, 421 [2008]). The mitigating factors cited by defendant, including his age (early 50s) and lack of a prior sex crime conviction, are outweighed by his extensive criminal record, including the underlying offense, which was a crime of violence (see e.g. People v Carter, 60 AD3d 467 [1st Dept 2009], lv denied 12 NY3d 716 [2009]).

Concur— Tom, J.E, Acosta, Moskowitz, Gische and Clark, JJ.

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Order, Supreme Court, New York County (Carol Berkman, J.), rendered June 27, 2012, 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.

The court properly assessed points for defendant’s failure to accept responsibility, based on his statements recorded in the presentence report reflecting an attempt to minimize his fault in the offense. In any event, regardless of whether defendant’s correct point score is 110 or 120 points, he would still be a presumptive level three offender, and we find no basis 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 Johnson, 11 NY3d 416, 418, 421 [2008]). The mitigating factors cited by defendant, including his age (early 50s) and lack of a prior sex crime conviction, are outweighed by his extensive criminal record, including the underlying offense, which was a crime of violence (see e.g. People v Carter, 60 AD3d 467 [1st Dept 2009], lv denied 12 NY3d 716 [2009]).

Concur— Tom, J.E, Acosta, Moskowitz, Gische and Clark, JJ.

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Bluebook (online)

117 A.D.3d 521, 985 N.Y.S.2d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-montgomery-nyappdiv-2014.

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