Opinion
No. 2891 Ind No. 3301/84 4293/84 Case No. 2019-2561
10-24-2024
The People of the State of New York, Respondent, v. Harvey Zimmerman, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Katherine A. Triffon of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Katherine A. Triffon of counsel), for respondent.
Before: Kern, J.P., Moulton, Scarpulla, Rodriguez, Michael, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 18, 2019, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court providently exercised its discretion in declining to grant a downward departure (see People v Gillotti, 23 N.Y.3d 841 [2014]). Defendant has not shown that his response to sex offender treatment was exceptional (see People v Bonnemere, 201 A.D.3d 475 [1st Dept 2022]), or that his age (late 50s) and family support reduced his likelihood of reoffense (see People v Talavera, 223 A.D.3d 538 [1st Dept 2024], lv denied 41 N.Y.3d 999 [2024]; People v Shaia, 221 A.D.3d 434 [1st Dept 2023], lv denied 41 N.Y.3d 906 [2024]). Any mitigating factors identified by defendant, including the fact that he did not commit any sex crimes since his release from prison (see People v Harrison, 143 A.D.3d 470 [1st Dept 2016]), were outweighed by his extensive criminal history (see People v Galarza, 220 A.D.3d 449 [1st Dept 2023], lv denied 41 N.Y.3d 903 [2024]) and the seriousness of the underlying offenses, in which he bound and raped one victim and attempted to do so to two others, including a 15-year-old child (see e.g. People v James D., 200 A.D.3d 618 [1st Dept 2021]).