Opinion
No. 924 Ind. No. 502/19 Case No. 2022-02735
10-31-2023
The People of the State of New York, Respondent, v. Jose Gamarra-Mendoza, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Everett K. Hopkins of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Everett K. Hopkins of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Before: Kapnick, J.P., Gesmer, Scarpulla, Rodriguez, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Laurence E. Busching, J.), entered on or about May 25, 2022, 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 [2014]). The statutory mitigating factors cited by defendant, were adequately taken into account by the risk assessment instrument, or were not shown to reduce defendant's individual risk of reoffense (see People v Cabrera, 91 A.D.3d 479, 479-480 [1st Dept 2012], lv denied 19 N.Y.3d 801 [2012]). In any event, these mitigating factors were outweighed by aggravating factors, including the seriousness of the underlying crime, in which hesexually abused his stepdaughter, an 11-year-old child when the abuse began, for approximately six years (see id. at 480).