Opinion
No. 3492.
October 28, 2010.
Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about January 5, 2009, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Steven Banks, The Legal Aid Society, New York (Karen M. Kalikow of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), for respondent.
Before: Tom, J.P., Friedman, Catterson, Renwick and Manzanet-Daniels, JJ.
The court properly assessed 30 points for defendant's commission of a prior sex offense, notwithstanding that it resulted in a misdemeanor youthful offender adjudication ( see People v Arnold, 35 AD3d 827, 827, lv denied 9 NY3d 813), as well as 10 points for the recency of that offense. Although we agree with defendant that there was an insufficient basis for assessing points for failure to accept responsibility, deducting the 10 points assessed under that risk factor lowers defendant's point score to 120, which is still above the threshold for a level three adjudication. Even with that reduction, we find that a discretionary downward departure ( see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416, 421) is unwarranted, especially in light of the seriousness of the underlying sex crime, which outweighs the mitigating factors cited by defendant.