Opinion
2014-03-11
The PEOPLE of the State of New York, Respondent, v. Augusto ROJAS, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Lorraine Maddalo 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 (Lorraine Maddalo of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Order, Supreme Court, New York County (Rena K. Uviller, J.), entered on or about September 22, 2011, which adjudicated defendant a level three sexually violent offender under the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly assessed 20 points under the risk factor for continuing course of sexual misconduct, because the case summary prepared by the Board of Examiners of Sex Offenders provided clear and convincing evidence that defendant committed three or more acts of sexual misconduct over a period of at least two weeks ( see People v. Mingo, 12 N.Y.3d 563, 572–574, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). Defendant's remaining challenge to his point score is unavailing because the court did not actually assess the additional points of which defendant complains; instead, the court only assessed 125 points, which still warrants a level three designation. The court providently exercised its discretion in declining to grant a downward departure to level two. Defendant does not claim that any physical limitations associated with his age minimize his risk for recidivism, and none of the other factors he cites warrants a downward departure, given the seriousness of his sex offenses against two children ( see e.g People v. Thomas, 105 A.D.3d 640, 963 N.Y.S.2d 583 [1st Dept.2013],lv. denied21 N.Y.3d 863, 2013 WL 4516315 [2013] ). GONZALEZ, P.J., TOM, FRIEDMAN, ANDRIAS, SAXE, JJ., concur.