People v. Lesta

Full title: The People of the State of New York, Respondent, v. Milton Lesta…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Oct 14, 2014

121 A.D.3d 494 (N.Y. App. Div. 2014)

2014 N.Y. Slip Op. 6908

994 N.Y.S.2d 114

Opinion

570935/10 13206 13205

10-14-2014

The People of the State of New York, Respondent, v. Milton Lesta, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.

Tom, J.P.

, Sweeny, Renwick, Andrias, Clark, JJ.

Steven Banks, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.

Orders of the Appellate Term of the Supreme Court, First Department, entered on or about February 1, 2013, which affirmed an order of the Criminal Court, New York County (Marc J. Whiten, J.), entered on or about September 29, 2010, adjudicating defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Criminal Court properly assessed 15 points under the factor for drug abuse, based on defendant's long history of drug-related convictions (see People v Valentine, 57 AD3d 268 [1st Dept 2008], lv denied 12 NY3d 705 [2009]), and his admissions to the Department of Probation and to an evaluating psychologist. Criminal Court also properly assessed 10 points for the use of forcible compulsion, based on the allegations contained in the complaint (see People v Mingo, 12 NY3d 563, 572 [2009]), and undisputed in defendant's own plea allocution. Under the circumstances, the fact that the case was disposed of by way of a plea to sexual misconduct does not undermine the inference of forcible compulsion for purposes of this assessment of points. Criminal Court properly exercised its discretion when it declined to grant a downward departure to level one (see People v Gillotti, ___ NY3d , 2014 NY Slip Op 04117, *11 [2014]). There were no mitigating factors that were not adequately taken into account by the guidelines.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 14, 2014

CLERK