Opinion
7705 Ind. 1983/00
11-27-2018
The PEOPLE of the State of New York, Respondent, v. Devrol PALMER, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Will A. Page of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Waleska Suero Garcia of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Will A. Page of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Waleska Suero Garcia of counsel), for respondent.
Friedman, J.P., Mazzarelli, Kern, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 27, 2016, 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] ). The mitigating factors cited by defendant were outweighed by the seriousness of the continuing offense against a young child over the course of years (see e.g. People v. Lopez, 146 A.D.3d 477, 45 N.Y.S.3d 52 [1st Dept. 2017], lv denied 29 N.Y.3d 904, 2017 WL 1224129 [2017] ). Defendant's favorable prison disciplinary record and completion of sex offender treatment were adequately taken into account by the risk assessment instrument's assessment of zero points for conduct while confined (see People v. Watson, 112 A.D.3d 501, 503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014] ) and acceptance of responsibility (see People v. McNeely, 124 A.D.3d 433, 998 N.Y.S.2d 381 [1st Dept. 2015], lv denied 25 N.Y.3d 908, 2015 WL 2237286 [2015] ). We reject defendant's argument that his deportation to Jamaica minimized the risk of reoffense (see e.g. People v. Zepeda, 124 A.D.3d 417, 997 N.Y.S.2d 626 [1st Dept. 2015], lv denied 25 N.Y.3d 902, 2015 WL 1423460 [2015] ). Defendant has not established that his score on the Static–99R warranted a downward departure (see People v. Roldan, 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 5001245 [2016] ).
Defendant failed to preserve his contention that the requirement of in-person reporting is inapplicable to him because of his deportation, and we decline to review it in the interest of justice. In any event, that argument is based on hypothetical future events, and it is not cognizable on this appeal.