Opinion
1266 KA 18–01551
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Vincent CATALANO, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that he was entitled to a downward departure from his presumptive risk level. Defendant is correct that "[a] court may choose to downwardly depart from the presumptive risk assessment level in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender's risk to public safety" ( People v. Cathy, 134 A.D.3d 1579, 1580, 22 N.Y.S.3d 747 [4th Dept. 2015] [internal quotation marks omitted] ). Here, however, a downward departure is not warranted given the circumstances surrounding the sexual assault, the age disparity between the 25–year–old defendant and the two 15–year–old victims, the absence of any evidence supporting defendant's allegation that the victims willingly engaged in sexual activity with him, and the fact that defendant is only five points below the threshold for a level three risk (see People v. Fryer, 101 A.D.3d 835, 836, 955 N.Y.S.2d 407 [2d Dept. 2012], lv denied 20 NY3d 859, 2013 WL 518550 [2013] ; cf. People v. George, 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 [4th Dept. 2016] ; People v. Carter, 138 A.D.3d 706, 707–708, 30 N.Y.S.3d 141 [2d Dept. 2016] ; see generally People v. Love, 175 A.D.3d 1835, 1835, 109 N.Y.S.3d 811 [4th Dept. 2019] ; Cathy, 134 A.D.3d at 1580, 22 N.Y.S.3d 747 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.