People v. Zamora

11 Citing cases

  1. People v. Contreras

    2024 N.Y. Slip Op. 6221 (N.Y. App. Div. 2024)

    Here, the alleged mitigating factors identified by the defendant, including his lack of a disciplinary record while in prison and successful completion of sex offender treatment, either were adequately taken into account by the Guidelines (see Guidelines at 16-17; People v Zamora, 186 A.D.3d 885; People v Alexander, 144 A.D.3d 1008) or did not warrant a downward departure (see People v Coleman, 225 A.D.3d 792, 794; People v Smith, 194 A.D.3d 767, 768). Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

  2. People v. Pipkin

    230 A.D.3d 704 (N.Y. App. Div. 2024)

    [5] Moreover, although an offender’s response to treatment, if exceptional, may qualify as a mitigating factor that warrants a downward departure (see People v. Pena, 217 A.D.3d 693, 191 N.Y.S.3d 100; People v. Payne, 216 A.D.3d 1187, 191 N.Y.S.3d 77), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v. Morales, 223 A.D.3d 850, 851, 204 N.Y.S.3d 196; People v. Peaks, 207 A.D.3d 482, 483, 169 N.Y.S.3d 514). Furthermore, the alleged additional mitigating factors identified by the defendant either were adequately taken into account by the Guidelines (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Zamora, 186 A.D.3d 885, 127 N.Y.S.3d 770; People v. Boutin, 172 A.D.3d 1253, 1254–1255, 99 N.Y.S.3d 417) or did not warrant a downward departure (see People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128). The defendant’s remaining contention is without merit.

  3. People v. Pipkin

    2024 N.Y. Slip Op. 4272 (N.Y. App. Div. 2024)

    Furthermore, the alleged additional mitigating factors identified by the defendant either were adequately taken into account by the Guidelines (see People v Gillotti, 23 N.Y.3d at 861; People v Zamora, 186 A.D.3d 885; People v Boutin, 172 A.D.3d 1253, 1254-1255) or did not warrant a downward departure (see People v Saintilus, 169 A.D.3d 838, 839). The defendant's remaining contention is without merit.

  4. People v. Hernandez

    2024 N.Y. Slip Op. 1734 (N.Y. App. Div. 2024)

    Here, the defendant failed to establish by a preponderance of the evidence that a downward departure was warranted. The defendant's disciplinary record while incarcerated was adequately taken into account by the Guidelines, since he was not assessed additional points for conduct while confined (see People v Pareja-Hidalgo, 222 A.D.3d 892; People v Infantino, 215 A.D.3d 768, 771; People v Zamora, 186 A.D.3d 885).

  5. People v. Hernandez

    225 A.D.3d 903 (N.Y. App. Div. 2024)   Cited 1 times

    [2] Here, the defendant failed to establish by a preponderance of the evidence that a downward departure was warranted. The defendant’s disciplinary record while incarcerated was adequately taken into account by the Guidelines, since he was not assessed additional points for conduct while confined (see People v. Pareja-Hidalgo, 222 A.D.3d 892, 203 N.Y.S.3d 109; People v. Infantino, 215 A.D.3d 768, 771, 185 N.Y.S.3d 692; People v. Zamora, 186 A.D.3d 885, 127 N.Y.S.3d 770). [3] The defendant’s remaining contentions that he is entitled to a downward departure based upon his age and the intrafamilial nature of the crime are unpreserved for appellate review, as he failed to raise those factors at the SORA hearing (see People v. Howard, 190 A.D.3d 773, 775, 135 N.Y.S.3d 869; People v. Wilcox, 178 A.D.3d 1107, 1109, 117 N.Y.S.3d 310).

  6. People v. Watts

    2024 N.Y. Slip Op. 1209 (N.Y. App. Div. 2024)

    Here, the defendant failed to establish by a preponderance of the evidence that a downward departure was warranted. The absence of a disciplinary record while in prison was adequately taken into account by the Guidelines, since he was not assessed additional points for conduct while confined (see People v Gillotti, 23 N.Y.3d at 861; People v Zamora, 186 A.D.3d 885; People v Santos, 174 A.D.3d 658, 659).

  7. People v. Watts

    225 A.D.3d 638 (N.Y. App. Div. 2024)

    [5] Here, the defendant failed to establish by a preponderance of the evidence that a downward departure was warranted. The absence of a disciplinary record while in prison was adequately taken into account by the Guidelines, since he was not assessed additional points for conduct while confined (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Zamora, 186 A.D.3d 885, 127 N.Y.S.3d 770; People v. Santos, 174 A.D.3d 658, 659, 102 N.Y.S.3d 272). Accordingly, the Supreme Court properly denied the defendant’s application for a downward departure and designated him a level three sex offender.

  8. People v. Sneed

    202 A.D.3d 1007 (N.Y. App. Div. 2022)   Cited 2 times

    Here, the defendant failed to prove the existence of any mitigating factors that are of a kind or to a degree not adequately taken into account by the Guidelines. The defendant's family support, employment, disciplinary record while confined, and young age at the time of his first sex offense were all adequately taken into account by the Guidelines (seePeople v. Young, 186 A.D.3d 1546, 1548, 129 N.Y.S.3d 490 ; People v. Thompson, 186 A.D.3d 1544, 1545, 130 N.Y.S.3d 84 ; People v. Zamora, 186 A.D.3d 885, 886, 127 N.Y.S.3d 770 ; People v. Edmee, 183 A.D.3d 766, 767–768, 121 N.Y.S.3d 902 ). Further, the defendant failed to demonstrate that his response to sex offender treatment was exceptional (seePeople v. Ellison, 197 A.D.3d 1258, 1259, 151 N.Y.S.3d 637 ; People v. Smith, 194 A.D.3d 767, 768, 143 N.Y.S.3d 560 ; People v. Powell, 188 A.D.3d 734, 735, 131 N.Y.S.3d 899 ).

  9. People v. Gonzalez

    194 A.D.3d 1083 (N.Y. App. Div. 2021)   Cited 16 times

    Finally, the Supreme Court providently exercised its discretion in denying the defendant's request for a downward departure from his presumptive risk level two designation. "A defendant seeking a downward departure from the presumptive risk level has the initial burden of '(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA: Risk Assessment Guidelines and Commentary at 4 (2006) (hereinafter Guidelines)]; and (2) establishing the facts in support of its existence by a preponderance of the evidence'" (People v Boutin, 172 AD3d 1253, 1254, quoting People v Wyatt, 89 AD3d 112, 128; see People v Zamora, 186 AD3d 885). The defendant must prove the existence of that factor by a preponderance of the evidence (see People v Gillotti, 23 NY3d 841, 861). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism" (People v Ramos, 186 AD3d 511, 511; see People v Gillotti, 23 NY3d at 861).

  10. People v. Gomez

    192 A.D.3d 602 (N.Y. App. Div. 2021)   Cited 4 times

    The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying crime. Defendant has not shown that his good disciplinary record, rehabilitation and response to sex offender treatment program were so exemplary or exceptional as to warrant a departure ( see e. g.People v. Zamora, 186 A.D.3d 885, 886, 127 N.Y.S.3d 770 [2d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7393401 [2020] ; People v. Palmer, 166 A.D.3d 536, 86 N.Y.S.3d 717 [1st Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1409867 [2019] ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 [2d Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3151966 [2016] ). We also find that the points assessed for a history of drug and alcohol abuse did not overassess defendant's risk of reoffense ( seePeople v. Watson, 112 A.D.3d 501, 502–503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014] ).