People v. Ogata

124 A.D.3d 416, 998 N.Y.S.2d 189

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 2015
• Docket: 13885 6609/04
• Status: Published

Opinion

Order, Supreme Court, New York County (Marcy Kahn, J), entered on or about May 29, 2013, 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 when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors, of a kind not otherwise adequately taken into account by the guidelines, that would warrant a downward departure. Defendant’s age and lack of a criminal record do not warrant a departure, given the seriousness of the underlying sex crimes committed against a small child and continued for many years. Defendant’s assertion that he should receive a departure because incest offenders allegedly pose a low risk of reoffense is without merit (see People v Rodriguez, 67 AD3d 596 [1st Dept 2009], lv denied 14 NY3d 706 [2010]).

Concur — Mazzarelli, J.P, DeGrasse, ManzanetDaniels, Feinman and Gische, JJ.