Opinion
15850, 4540/07.
10-13-2015
The PEOPLE of the State of New York, Respondent, v. Alejandro SIERRA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, ANDRIAS, MANZANET–DANIELS, JJ.
Opinion Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered September 20, 2013, 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 15 points for causing physical injury, because the victim's grand jury testimony describing the violent manner in which defendant inflicted bruises, and the resulting substantial pain, support a finding of such injury by clear and convincing evidence (see People v. Chiddick, 8 N.Y.3d 445, 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ). The court also properly assessed 15 points for defendant's failure to accept responsibility, in light of the People's proof that he was expelled from a sex offender treatment program for poor progress, despite having been given three opportunities to complete the program, and that he refused further participation after his removal (see People v. Grigg, 112 A.D.3d 802, 803, 977 N.Y.S.2d 84 [2d Dept.2013], lv. denied 22 N.Y.3d 865, 2014 WL 1316202 [2014] ; People v. Thousand, 109 A.D.3d 1149, 971 N.Y.S.2d 604 [4th Dept.2013], lv. denied 22 N.Y.3d 857, 2013 WL 6500631 [2013] ).
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 that were not adequately taken into account by the guidelines, and the record does not establish any basis for a downward departure, given defendant's criminal history.