Opinion
2013-12-5
The PEOPLE of the State of New York, Respondent, v. Darwin NUNEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about July 17, 2012, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Regardless of whether the court properly assessed defendant 15 points for infliction of physical injury, defendant still qualifies as a level two offender, and there is no basis for a discretionary downward departure to level one ( see People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ). The underlying offense, committed against a child, was serious, and the mitigating factors cited by defendant were generally taken into account by the risk assessment instrument. TOM, J.P., FRIEDMAN, RENWICK, FEINMAN, CLARK, JJ., concur.