Opinion
2014-09-30
The PEOPLE of the State of New York, Respondent, v. Emiliano CARREON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about November 21, 2012, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly exercised its discretion in declining to grant a downward departure ( see People v. Cintron, 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert. denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009]; People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). Defendant did not demonstrate by a preponderance of the evidence any mitigating factors not already taken into account in the risk assessment instrument that would warrant a downward departure ( see People v. Gillotti, 23 N.Y.3d 841, 851, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [2014] ). While working as a home health care attendant for a disabled person, he committed sex offenses against that person's mentally-impaired teenaged sister. We do not find that this defendant's age requires a downward departure to level one, when viewed in light of all the circumstances ( see e. g. People v. Harrison, 74 A.D.3d 688, 902 N.Y.S.2d 821 [1st Dept.2010], lv. denied 15 N.Y.3d 711, 2010 WL 4068522 [2010] ).
We have considered and reject defendant's remaining arguments. MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ., concur.