Opinion
10-13-2016
The PEOPLE of the State of New York, Respondent, v. Victor GUARDIOLA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Order, Supreme Court, New York County (Larry Stephen, J.), entered on or about August 1, 2013, which adjudicated defendant a risk level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Defendant's prior felony sex crime conviction automatically resulted in an override to risk level three (see People v. Howard, 27 N.Y.3d 337, 342, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ), and the court properly 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] ). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument, and the record does not establish any basis for a downward departure. Defendant's participation in sex offender treatment while in prison was adequately taken into account, and we reject his assertion that he poses a diminished risk of reoffense (see e.g. People v. McNeely, 124 A.D.3d 433, 998 N.Y.S.2d 381 [1st Dept.2015]lv. denied 25 N.Y.3d 908, 2015 WL 2237286 [2005] ).
FRIEDMAN, J.P., RICHTER, FEINMAN, KAPNICK, KAHN, JJ., concur.