People v. Russell

135 A.D.3d 457, 21 N.Y.S.3d 896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 2016
• Docket: 3258/01 16592 16591
• Status: Published

Opinion

Order, Supreme Court, New York County (Charles H. Solomon, J.), entered April 15, 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.

The court properly assessed 20 points under the risk factor for the victim’s physical helplessness (see People v Winbush, 123 AD3d 490 [1st Dept 2014], lv denied 24 NY3d 916 [2015]; People v Howell, 82 AD3d 857, 858 [2d Dept 2011], lv denied 16 NY3d 713 [2011]). In any event, regardless of whether defendant’s correct point score is 130 or 110, we find no basis for a downward departure to level two (see People v Gillotti, 23 NY3d 841 [2014]). Defendant did not demonstrate any mitigating factors not already taken into account in the risk assessment instrument that would warrant a downward departure, given the egregiousness of defendant’s sexual offense. Concur — Tom, J.P., Mazzarelli, Richter and Gische, JJ.