Opinion
No. 2315.
March 9, 2010.
Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about December 18, 2007, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Steven Banks, The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.
Before: Tom, J.P., Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ.
The hearing court providently exercised its discretion ( see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 418, 421) in denying defendant's request for a downward departure. Although defendant argues that his age and physical condition would militate against his reoffending, these factors did not prevent him from committing a sexual offense while incarcerated ( see People v Johnson, 44 AD3d 571, lv denied 10 NY3d 701; People v Adams, 44 AD3d 1020, 9 NY3d 818). Defendant's claim that, notwithstanding his guilty plea, he was innocent of the underlying rape is an inappropriate basis for a downward departure. "Facts previously . . . elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated" (Correction Law § 168-n).