People v. Calle-Calle

4 Citing cases

  1. People v. Hernandez

    153 A.D.3d 862 (N.Y. App. Div. 2017)   Cited 5 times

    ORDERED that the order dated February 18, 2014, is affirmed insofar as appealed from, without costs or disbursements.Contrary to the defendant's contention, the People established, by clear and convincing evidence, that the assessment of 15 points under risk factor 11, for a history of alcohol abuse, was appropriate (see People v. Henriquez, 146 A.D.3d 911, 44 N.Y.S.3d 768 ; People v. Zavala, 114 A.D.3d 653, 654, 979 N.Y.S.2d 660 ).Contrary to the defendant's further contention, the Supreme Court properly denied his application for a downward departure (see People v. Fessel, 149 A.D.3d 1113, 50 N.Y.S.3d 885 ; People v. Calle–Calle, 145 A.D.3d 804, 41 N.Y.S.3d 911 ; People v. Vizcarra, 138 A.D.3d 815, 816, 28 N.Y.S.3d 336 ).

  2. People v. Hernandez

    2017 N.Y. Slip Op. 6303 (N.Y. App. Div. 2017)

    Contrary to the defendant's contention, the People established, by clear and convincing evidence, that the assessment of 15 points under risk factor 11, for a history of alcohol abuse, was appropriate (see People v Henriquez, 146 AD3d 911; People v Zavala, 114 AD3d 653, 654). Contrary to the defendant's further contention, the Supreme Court properly denied his application for a downward departure (see People v Fessel, 149 AD3d 1113; People v Calle-Calle, 145 AD3d 804; People v Vizcarra, 138 AD3d 815, 816). ENG, P.J., LEVENTHAL, SGROI and MALTESE, JJ., concur.

  3. People v. Anderson

    151 A.D.3d 767 (N.Y. App. Div. 2017)   Cited 7 times

    A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Here, the defendant failed to identify any appropriate mitigating factor which would warrant a downward departure (see People v. Calle–Calle, 145 A.D.3d 804, 804, 41 N.Y.S.3d 911 ; People v. White, 144 A.D.3d 881, 882, 40 N.Y.S.3d 786 ; People v. Jordan, 142 A.D.3d 596, 596, 36 N.Y.S.3d 608 ). After subtracting the 15 points improperly assessed under risk factor 12, the defendant's point total on the RAI is 105, within the range for a level two sex offender.

  4. People v. Fessel

    149 A.D.3d 1113 (N.Y. App. Div. 2017)   Cited 10 times

    "[O]nce the People have sustained their burden of proving the applicability of an override, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic’ " (People v. Broadus, 142 A.D.3d 595, 595–596, 36 N.Y.S.3d 601, quoting People v. Gordon, 133 A.D.3d 835, 836, 20 N.Y.S.3d 165 ). Although a court may depart from the presumptive risk level where the circumstances warrant that departure (see People v. Broadus, 142 A.D.3d at 596, 36 N.Y.S.3d 601), here, the Supreme Court properly denied the defendant's application for a downward departure (see People v. Calle–Calle, 145 A.D.3d 804, 41 N.Y.S.3d 911 ; People v. Vizcarra, 138 A.D.3d 815, 816, 28 N.Y.S.3d 336 ; People v. Sadler, 124 A.D.3d 613, 613–614, 997 N.Y.S.2d 915 ). Accordingly, the Supreme Court correctly designated the defendant a level three sex offender.