Opinion
14913 Ind. No. 1473/15 Case No. 2020–03760
12-28-2021
The PEOPLE of the State of New York, Respondent, v. JAMES D., Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Kern, J.P., Moulton, Mendez, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about July 13, 2020, which adjudicated defendant a level three sexually violent predicate sex 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 generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), and we find no basis to substitute our own discretion in this regard. The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying crime and the nature and number of his other sex offense convictions (see e. g. People v. Colon, 149 A.D.3d 498, 50 N.Y.S.3d 394 [1st Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3901527 [2017] ). In the underlying incident, defendant assaulted and attempted to rape a female stranger after following her into her apartment building. His other convictions involved forcible touching of female strangers, with one occurring six days after his guilty plea in this case. Further, the progress defendant had demonstrated occurred solely while he was in a controlled environment and is not necessarily indicative of his future conduct while at liberty.