Opinion
14095 Ind. No. 99059/15 Case No. 2017-1509
06-17-2021
The PEOPLE of the State of New York, Respondent, v. David MCCOLLUM, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Jose David Rodriguez-Gonzalez of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Jose David Rodriguez-Gonzalez of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Gonza´lez, Shulman, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about March 17, 2017, 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 properly 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 failed to identify "mitigating circumstances ... of a kind or to a degree not taken into account by the guidelines" and to "adduce[ ] sufficient evidence" showing that such circumstances "actually exist in the case at hand" ( id. at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Defendant did not show that his response to sex offender treatment and efforts at rehabilitation during his incarceration were exceptional, and his reliance on independent risk assessments, which were not submitted in court and about which no testimony was proffered, is unavailing ( see People v. Desnoyers, 180 A.D.3d 1080, 1081, 119 N.Y.S.3d 237 [2d Dept. 2020] ; People v. Cruz, 154 A.D.3d 610, 63 N.Y.S.3d 351 [1st Dept. 2017] ). Aggravating factors, including the circumstances of the underlying offense, also weighed against a downward departure.