Opinion
15230 Ind. Nos. 5090/04, 5090A/04 Case No. 2019–05250
02-03-2022
The PEOPLE of the State of New York, Respondent, v. Robert THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent.
Manzanet–Daniels, J.P., Webber, Oing, Mendez, Higgitt, JJ.
Order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about August 13, 2019, which adjudicated defendant a level three predicate sex 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] ). Defendant has failed to show that his medical condition, age, or family situation would prevent him from reoffending. Defendant was already 60 years old when he began grooming and sexually assaulting the minor victim. His prior offenses (one of which also resulted in a level three adjudication) involved heinous assaults against children, and the underlying offense included his use and possession of nude photographs of his young victim. Even if defendant was less likely to reoffend due to his age and mobility issues, no departure is warranted because "the harm would be great if he did reoffend" ( People v. Cabrera, 91 A.D.3d 479, 479–480, 937 N.Y.S.2d 14 [1st Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1500098 [2012] [internal quotation marks omitted]). This was not one of the "rare cases in which we should exercise our discretion to depart downward" ( People v. Williams, 148 A.D.3d 540, 540, 49 N.Y.S.3d 671 [1st Dept. 2017] ).