Opinion
11-18-2014
The PEOPLE of the State of New York, Respondent, v. Antonio LOPEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about February 22, 2013, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly exercised its discretion in declining to grant a downward departure (see People v. Cintron, 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert. denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009] ; People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). Defendant failed to demonstrate by a preponderance of the evidence any mitigating factors not already taken into account in the risk assessment instrument that would warrant such a departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The underlying conduct was committed against a child over an extended period, and the mitigating factors cited by defendant, including his age, do not warrant a downward departure (see e.g. People v. Harrison, 74 A.D.3d 688, 902 N.Y.S.2d 821 [1st Dept.2010], lv. denied 15 N.Y.3d 711, 2010 WL 4068522 [2010] ).
TOM, J.P., RENWICK, ANDRIAS, DeGRASSE, KAPNICK, JJ., concur.