People v. Rodriguez

2017 NY Slip Op 85, 146 A.D.3d 452, 43 N.Y.S.3d 754

Opinion

Order, Supreme Court, Bronx County (Barbara F. Newman, J.), entered December 10, 2015, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant is subject to the presumptive override for a prior felony sex crime conviction, which results in a level three adjudication independent of any point assessments. In any event, we reject defendant’s challenge to the assessment of 15 points for refusing to participate in or being expelled from a sex offender treatment program.

The court providently exercised its discretion in declining to grant a downward departure from defendant’s presumptive risk level to level two (see People v Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the fact that defendant has two convictions for sex crimes against children. This includes the underlying offense, which was committed at the age of almost 64, thus undermining defendant’s claim that his age of almost 70 at the time of the SORA hearing shows a reduced risk of reoffense (see People v McFarland, 120 AD3d 1121, 1122 [1st Dept 2014], lv denied 24 NY3d 1053 [2014]), and his low-moderate Static-99R score’s reliance on his age.

Concur— Acosta, J.R, Mazzarelli, Andrias, Feinman and Webber, JJ.