Opinion
4824, 2067/10.
10-26-2017
The PEOPLE of the State of New York, Respondent, v. Kenny CRUZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
TOM, J.P., MANZANET–DANIELS, MAZZARELLI, OING, SINGH, JJ.
Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about April 21, 2016, 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 providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The probative value of defendant's Static–99 score is limited because that assessment inadequately considers the underlying sex crime and the potential for harm in the event of reoffense (see People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [2016], lv. denied 28 N.Y.3d 916, 2017 WL 628943 [2017] ; People v. Roldan, 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 [1st Dept.2016], lv. denied 28 N.Y.3d 904, 2016 WL 5001245 [2016] ). The other mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of the underlying crime (see People v. McNeely, 124 A.D.3d 433, 998 N.Y.S.2d 381 [1st Dept.2015], lv. denied 25 N.Y.3d 908, 2015 WL 2237286 [2015] ).
The hearing court's incorrect reference to the clear and convincing evidence standard does not require a new hearing, because use of the correct preponderance of the evidence standard would not have affected the result (see People v. Corn, 128 A.D.3d 436, 8 N.Y.S.3d 322 [1st Dept.2015] ).