Opinion
9054 Ind. 8958/98
04-23-2019
The PEOPLE of the State of New York, Respondent, v. Seth SUDDERTH, Defendant–Appellant.
Justine M. Luongo, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Justine M. Luongo, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Friedman, J.P., Sweeny, Tom, Moulton, JJ.
Order, Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about November 22, 2016, 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 10 points under the risk factor for use of violence, given the threats made by defendant in the course of his sexual abuse of a very young child (see People v. Hosear, 134 A.D.3d 633, 21 N.Y.S.3d 611 [1st Dept. 2015] ). Regardless of whether defendant's correct point score is 125, or 115 as he contends, he remains a level three offender, and we find no basis for a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Defendant did not establish that his physical condition would prevent him from committing additional sex crimes, especially against young children (see People v. Portalatin, 145 A.D.3d 463, 41 N.Y.S.3d 712 [1st Dept. 2016] ; see also People v. Rodriguez, 101 A.D.3d 630, 955 N.Y.S.2d 867 [1st Dept. 2012], lv denied 21 N.Y.3d 851, 965 N.Y.S.2d 789, 988 N.E.2d 527 [2013] ).