Opinion
No. 16248 SCI No. 1905/17 Case No. 2021-00822
09-27-2022
The People of the State of New York, Respondent, v. John Heater, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Zoe Root of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Zoe Root of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.
Before: Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 22, 2022, which adjudicated defendant a level three sexually violent predicate 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 [2014]). The court's assessment of 20 points under the risk factor for sexual misconduct while in prison was supported by clear and convincing evidence that defendant confessed to stalking a female correction officer (see People v Faulkner, 151 A.D.3d 601, 601 [1st Dept 2017]). There was no overassessment, because the infraction evinced a chronic lack of self-control, as defendant acknowledged. In any event, defendant is a level three offender based on both his point score and the presumptive override for a prior felony sex crime conviction. The unexceptional mitigating factors cited by defendant were adequately taken into account by the guidelines or outweighed by the seriousness of defendant's crime itself and by defendant's long history of abusing young children.