Opinion
15895 Ind. No. 211/10 Case No. 2020–03305
05-10-2022
The PEOPLE of the State of New York, Respondent, v. Omar HERNANDEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin–Becker of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Nathan Shi of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin–Becker of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Nathan Shi of counsel), for respondent.
Webber, J.P., Singh, Moulton, Kennedy, Rodriguez, JJ.
Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about July 13, 2020, 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, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Defendant has not demonstrated that his response to sex offender treatment was exceptional, especially given his continued denials of having committed the underlying sex crimes and his assertions that any contact with the child was accidental (see e. g. People v. Bonnemere, 201 A.D.3d 475, 156 N.Y.S.3d 838 [1st Dept. 2022] ). Defendant's lack of clean prison disciplinary infractions while incarcerated, record, his rehabilitative efforts, and lack of a criminal history have been accounted for by the risk assessment instrument (see People v. Gomez, 201 A.D.3d 601, 157 N.Y.S.3d 724 [1st Dept. 2022] ; People v. Roman, 198 A.D.3d 425, 152 N.Y.S.3d 296 [1st Dept. 2021] ). Defendant has failed to show how his claimed support network and employment prospects would reduce his likelihood of reoffense or danger to the community (see id. at 426, 152 N.Y.S.3d 296 ; People v. Stuckey, 174 A.D.3d 454, 455, 101 N.Y.S.3d 846 [1st Dept. 2019] ). Defendant's low Static–99R score is insufficient to justify a downward departure (see People v. Roldan, 140 A.D.3d 411, 30 N.Y.S.3d 871 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 5001245 [2016] ). In any event, the alleged mitigating factors were outweighed by the seriousness of the underlying crimes, which were committed against a young child.