Opinion
14985 Ind. No. 2097/16 Case No. 2018–2456
01-06-2022
The PEOPLE of the State of New York, Respondent, v. Arcadio GONZALEZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.
Kern, J.P., Mazzarelli, Gesmer, Gonza´lez, Higgitt, JJ.
Order, Supreme Court, New York County (Ellen N. Biben, J.), entered on or about September 29, 2017, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–c), unanimously affirmed, without costs.
The court providently exercised its discretion in declining to grant a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The assessment of points under the risk factor for release without supervision was not an overassessment, because the lack of any supervision may enhance the risk of reoffense, and the fact that the absence of parole or postrelease supervision resulted from defendant's negotiated plea and one-year sentence does not show a diminished risk of reoffense. Defendant has not established that such factors as his age (45), family support and participation in a treatment program reduced his risk of reoffense to an extent warranting a downward departure (see e. g. People v. Brown, 181 A.D.3d 421, 117 N.Y.S.3d 560 [1st Dept. 2020], lv denied 35 N.Y.3d 912, 2020 WL 5179232 [2020] ; People v. Stuckey, 174 A.D.3d 454, 101 N.Y.S.3d 846 [1st Dept. 2019] ; People v. McFarland, 120 A.D.3d 1121, 1122, 992 N.Y.S.2d 414 [1st Dept. 2014], lv denied 24 N.Y.3d 1053, 999 N.Y.S.2d 360, 24 N.E.3d 597 [2014] ). Furthermore, in denying a downward departure, the court appropriately considered the seriousness of the underlying attempted rape, in which defendant demonstrated a desire to engage in sexual intercourse with a person he believed to be a 14–year–old child, but was actually an undercover officer (see People v. Macchia, 126 A.D.3d 458, 461, 5 N.Y.S.3d 392 [1st Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3605144 [2015] ). Finally, the court also considered the fact that defendant sent nude photos of himself to his intended victim, and defendant's challenges to this evidence are unpreserved and without merit.