Opinion
268 Ind. No. 5480/05 Case No. 2018–1390
05-16-2023
The PEOPLE of the State of New York, Respondent, v. Victor CARDONA, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Renwick, A.P.J., Webber, Oing, Singh, Kennedy, JJ.
Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about January 30, 2015, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–c), unanimously affirmed, without costs.
The court providently exercised its discretion when it declined to grant a downward departure from the presumptive override to level three for a prior felony sex crime conviction (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying crime, which consisted of the repeated rape of defendant's 13–year–old stepdaughter, especially when viewed in light of defendant's prior conviction of a sex crime upon a wheelchair-bound teenager. Under the totality of the circumstances, defendant's rehabilitative efforts and response to sex offender treatment were not so exceptional as to warrant a departure (see e. g. People v. Ortega, 209 A.D.3d 540, 540, 175 N.Y.S.3d 212 [1st Dept. 2022], lv denied 39 N.Y.3d 908, 2023 WL 1975895 [2023] ).