Opinion
13885, 6609/04.
01-06-2015
The PEOPLE of the State of New York, Respondent, v. James OGATA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
MAZZARELLI, J.P., DeGRASSE, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Opinion
Order, Supreme Court, New York County (Marcy Kahn, J.), entered on or about May 29, 2013, 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] ). There were no mitigating factors, of a kind not otherwise adequately taken into account by the guidelines, that would warrant a downward departure. Defendant's age and lack of a criminal record do not warrant a departure, given the seriousness of the underlying sex crimes committed against a small child and continued for many years. Defendant's assertion that he should receive a departure because incest offenders allegedly pose a low risk of reoffense is without merit (see People v. Rodriguez, 67 A.D.3d 596, 889 N.Y.S.2d 176 [1st Dept.2009], lv. denied 14 N.Y.3d 706, 2010 WL 1235656 [2010] ).