Opinion
10-18-2017
PEOPLE of State of New York, respondent, v. Eddy ARISTILDE, appellant.
Seymour W. James, Jr., New York, NY (Andrea Yacka–Bible of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Andrea Yacka–Bible of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated February 15, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court properly designated the defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art. 6–C). Contrary to the defendant's contention, the People established by clear and convincing evidence that the defendant inflicted physical injury on the complainant, which supported the assessment of 15 points under risk factor 1 (see People v. Mitchell, 142 A.D.3d 542, 543, 36 N.Y.S.3d 490 ; People v. Sullivan, 64 A.D.3d 67, 74, 883 N.Y.S.2d 44 ). Further, the court properly assessed 10 points under risk factor 2 for physical contact under clothing (see People v. Dunn, 82 A.D.3d 856, 857, 918 N.Y.S.2d 358 ; People v. Perser, 29 A.D.3d 767, 767, 814 N.Y.S.2d 283 ). The court also providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level designation, as the defendant failed to prove by a preponderance of the evidence any mitigating factor which would warrant a downward departure (see People v. Velazquez, 130 A.D.3d 997, 999, 13 N.Y.S.3d 574 ; People v. Wyatt, 89 A.D.3d 112, 131, 931 N.Y.S.2d 85 ).
MASTRO, J.P., HALL, AUSTIN and SGROI, JJ., concur.