Opinion
Appeal No. 15137 Ind. No. 589/13Case No. 2017-3039 Ind. 589/13
01-25-2022
The People of the State of New York, Respondent, v. Rigoberto Funez, Defendant-Appellant. Appeal No. 15137 No. 2017-3039
Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Before: Gische, J.P., Webber, Mendez, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York (Michael J. Obus, J.), entered on or about April 14, 2017, 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, and were outweighed by the seriousness of defendant's sex crimes against two young children. Defendant manifested a high risk of reoffense by sexually abusing one child over a period of years, and then, years later, sexually abusing the now-grown first victim's young daughter as well. Defendant has not shown that his age and family situation significantly reduce his particular risk of reoffense (see e.g. People v Rivera, 188 A.D.3d 609 [1st Dept 2020], lv denied 36 N.Y.3d 910 [2021]; People v Vega, 115 A.D.3d 461 [1st Dept 2014], lv denied 23 N.Y.3d 905 [2014]). His favorable Static-99 score has only limited probative value (see People v Rodriguez, 145 A.D.3d 489, 490 [1st Dept 2016], lv denied 28 N.Y.3d 916 [2017]).