Opinion
2014-05-13
The PEOPLE of the State of New York, Respondent, v. Ernest MONTGOMERY, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
TOM, J.P., ACOSTA, MOSKOWITZ, GISCHE, CLARK, JJ.
Order, Supreme Court, New York County (Carol Berkman, J.), rendered June 27, 2012, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly assessed points for defendant's failure to accept responsibility, based on his statements recorded in the presentence report reflecting an attempt to minimize his fault in the offense. In any event, regardless of whether defendant's correct point score is 110 or 120 points, he would still be a presumptive level three offender, and we find no basis for 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 sub nom. Knox v. New York, 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009];People v. Johnson, 11 N.Y.3d 416, 418, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). The mitigating factors cited by defendant, including his age (early 50s) and lack of a prior sex crime conviction, are outweighed by his extensive criminal record, including the underlying offense, which was a crime of violence ( see e.g. People v. Carter, 60 A.D.3d 467, 875 N.Y.S.2d 28 [1st Dept.2009], lv. denied12 N.Y.3d 716, 2009 WL 1851319 [2009] ).