Opinion
No. 17237 Ind No. 6022/09 Case No. 2018-2677
02-02-2023
People of the State of New York, Respondent, v. Francisco Colon, Defendant-Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Jennifer Covais of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Jennifer Covais of counsel), for respondent.
Before: Manzanet-Daniels, J.P., González, Scarpulla, Shulman, Pitt-Burke, JJ.
Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about June 5, 2018, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 N.Y.3d 841 [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 series of sex crimes committed against a 10 year old child. Defendant's response to sex offender treatment, prison disciplinary record, and other evidence of rehabilitation were accounted for, and were not so exceptional as to warrant a departure under the totality of circumstances. Furthermore, we do not find that defendant's point score overassesses his threat to public safety (see e.g. People v Cabrera, 91 A.D.3d 479, 479 [1st Dept 2012], lv denied 19 NY 801 [2012).