Opinion
1235 KA 17–01155
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Dante CAPEL, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, 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 designating him a level two sex offender pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). We reject defendant's contention that Supreme Court abused its discretion in denying his request for a downward departure from the presumptive risk level (see People v. Reber, 145 A.D.3d 1627, 1627, 43 N.Y.S.3d 925 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719220 [2017] ; People v. Adams, 52 A.D.3d 1237, 1237, 862 N.Y.S.2d 223 [4th Dept. 2008], lv denied 11 N.Y.3d 705, 866 N.Y.S.2d 609, 896 N.E.2d 95 [2008] ). Defendant was required to register as a sex offender in New York because he committed a classifying offense in another state (see § 168–a [2][d][ii] ), and the court properly declined to grant a downward departure based on factors "adequately taken into account by the guidelines" ( People v. Finocchiaro, 140 A.D.3d 1676, 1676, 34 N.Y.S.3d 819 [4th Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6273217 [2016] [internal quotation marks omitted] ). Defendant further contends that he should have received a downward departure because the victim's lack of consent in the underlying offense was based only on her age and the ages of the victim and defendant, 12 and 16 respectively, were relatively close. Defendant's contention lacks merit. The court properly considered all of the circumstances and determined that, notwithstanding defendant's contentions, the presumptive level two risk classification did not "result[ ] in an overassessment of defendant's risk to public safety" ( People v. George, 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 [4th Dept. 2016] ; cf. People v. Carter, 138 A.D.3d 706, 707–708, 30 N.Y.S.3d 141 [2d Dept. 2016] ).