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People v. Serrano

Supreme Court, Appellate Division, Fourth Department, New York.
Aug 20, 2020
186 A.D.3d 1078 (N.Y. App. Div. 2020)

Opinion

452 KA 19-01732

08-20-2020

The PEOPLE of the State of New York, Respondent, v. Hector SERRANO, Defendant-appellant.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). Contrary to defendant's contention, County Court did not err in denying his request for a downward departure from his presumptive risk level. Even assuming, arguendo, that defendant met his burden of establishing the existence of an appropriate mitigating factor by a preponderance of the evidence, we conclude that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Wooten , 136 A.D.3d 1305, 1306, 24 N.Y.S.3d 550 [4th Dept. 2016] ; see also People v. Bernecky , 161 A.D.3d 1540, 1541, 76 N.Y.S.3d 723 [4th Dept. 2018], lv denied 32 N.Y.3d 901, 2018 WL 4135030 [2018] ). We reject defendant's related contention that the court erred in denying his request for a downward departure because the assessment of points under risk factors 3 and 7 resulted in an "inflated" score on his risk assessment instrument (see People v. Tirado , 165 A.D.3d 991, 992, 84 N.Y.S.3d 578 [2d Dept. 2018], lv denied 32 N.Y.3d 914, 2019 WL 191940 [2019] ; People v. Goldman , 150 A.D.3d 905, 907, 55 N.Y.S.3d 78 [2d Dept. 2017] ).


Summaries of

People v. Serrano

Supreme Court, Appellate Division, Fourth Department, New York.
Aug 20, 2020
186 A.D.3d 1078 (N.Y. App. Div. 2020)
Case details for

People v. Serrano

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Hector SERRANO…

Court:Supreme Court, Appellate Division, Fourth Department, New York.

Date published: Aug 20, 2020

Citations

186 A.D.3d 1078 (N.Y. App. Div. 2020)
186 A.D.3d 1078