Opinion
8955 Ind. 5616/04
04-11-2019
The PEOPLE of the State of New York, Respondent, v. Luis FIAVACHAY, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Friedman, J.P., Sweeny, Webber, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or about December 11, 2012, which adjudicated defendant a level two sexually violent 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 (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Defendant's age of 65 at the time of the hearing does not establish that he has only a minimal risk of reoffense; we note that he was 54 when he committed the underlying sexual offenses (see People v. Rodriguez, 146 A.D.3d 452, 43 N.Y.S.3d 754 [1st Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 1843526 [2017] ). Defendant's low Static–99 score is insufficient to warrant a departure (see 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] ). The remaining mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument.