Opinion
13425 Ind. No. 817/13 Case No. 2018-2751
03-25-2021
The PEOPLE of the State of New York, Respondent, v. Olivo GOMEZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York ( Laura Lieberman Cohen of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York ( Laura Lieberman Cohen of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Renwick, J.P., Mazzarelli, Singh, Gonza´lez, JJ.
Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about November 14, 2017, which adjudicated defendant a level two sexually violent offender under the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court providently exercised its discretion in declining 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 mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying crime. Defendant has not shown that his good disciplinary record, rehabilitation and response to sex offender treatment program were so exemplary or exceptional as to warrant a departure ( see e. g. People v. Zamora, 186 A.D.3d 885, 886, 127 N.Y.S.3d 770 [2d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7393401 [2020] ; People v. Palmer, 166 A.D.3d 536, 86 N.Y.S.3d 717 [1st Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1409867 [2019] ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 [2d Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3151966 [2016] ). We also find that the points assessed for a history of drug and alcohol abuse did not overassess defendant's risk of reoffense ( see People v. Watson, 112 A.D.3d 501, 502–503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014] ).