Opinion
2014-04-17
The PEOPLE of the State of New York, Respondent, v. Joel GUDINO–SANCHEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Nancy Killian of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Nancy Killian of counsel), for respondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered January 2, 2013, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Initially, we decline to dismiss this appeal on the ground that defendant has been deported ( see People v. Scott, 113 A.D.3d 491, 978 N.Y.S.2d 838 [1st Dept.2014] ). The People have not established that defendant's absence from the United States renders this appeal moot.
The People presented clear and convincing evidence that defendant did not accept responsibility for his crime, instead blaming the victim ( see People v. Teagle, 64 A.D.3d 549, 884 N.Y.S.2d 80 [2d Dept.2009] ), and, under the circumstances, his participation in rehabilitation programs was not an acceptance of responsibility. Therefore, the court correctly assessed 10 points under that risk factor.
The court properly exercised its discretion when it declined to grant a downward departure ( see People v. Cintron, 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149,cert. denied sub nom. Knox v. New York, 558 U.S. 1011, 130 S.Ct. 552, 558 U.S. 1011 [2009];People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). Defendant did not demonstrate any mitigating factors not taken into account by the risk assessment instrument that would warrant a downward departure. FRIEDMAN, J.P., SWEENY, ANDRIAS, GISCHE, CLARK, JJ., concur.