Opinion
14189 Ind. No. 334/15 Case No. 2020–03966
09-28-2021
The PEOPLE of the State of New York, Respondent, v. Elpidio CONCEVALERIO, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.
Webber, J.P., Mazzarelli, Gonza´lez, Scarpulla, Pitt, JJ.
Order, Supreme Court, Bronx County (Martin Marcus, J.), entered on or about July 1, 2020, which adjudicated defendant a level two sexually violent sex 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 generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The risk assessment instrument and guidelines adequately accounted for defendant's performance in sex offender treatment, relationship to the victim, lack of a criminal history and satisfactory conduct while incarcerated. Additionally, defendant's below average Static–99R score had only limited probative value and did not warrant a downward departure (see e.g. People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017] ; People v. Roldan, 140 A.D.3d 411, 30 N.Y.S.3d 871 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 5001245 [2016] ). In any event, the claimed mitigating factors were outweighed by the seriousness of defendant's sexual conduct against a child.