Opinion
01-26-2017
The PEOPLE of the State of New York, Respondent, v. Leston KELLY, Defendant–Appellant.
The Legal Aid Society, New York (Seymour W. James, Jr. of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.
The Legal Aid Society, New York (Seymour W. James, Jr. of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.
Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered September 12, 2014, 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] ). 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 sex crimes committed against defendant's young stepdaughter, which continued for over five years (see e.g. People v. Ogata, 124 A.D.3d 416, 416, 998 N.Y.S.2d 189 [1st Dept.2015], lv. denied 25 N.Y.3d 908, 2015 WL 2237492 [2015] ).
FRIEDMAN, J.P., RICHTER, SAXE, MOSKOWITZ, KAPNICK, JJ., concur.