People v. Gomez , 2022 NY Slip Op 00515 ( 2022 )

People v Gomez (2022 NY Slip Op 00515)

People v Gomez

2022 NY Slip Op 00515

Decided on January 27, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 27, 2022
Before: Kapnick, J.P., Gesmer, González, Kennedy, Shulman, JJ.

Ind No. 4335/10 Appeal No. 15164 Case No. 2020-04782

[*1]The People of the State of New York, Respondent,

v

Isael Gomez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (John L. Palmer of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.

Order, Supreme Court, New York County (Miriam R. Best, J.), entered on or about December 1, 2020, which adjudicated defendant a level two sexually violent 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 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of defendant's sexual abuse of his stepdaughter for a period of six years, starting when she was eight years old. Defendant's clean disciplinary record and allegedly "exemplary" conduct while incarcerated, lack of a criminal history, and intensive postrelease supervision were adequately taken into account, and defendant has not shown that his age and efforts at rehabilitation reduced his risk of reoffense to an extent warranting a departure (see e.g. People v Palmer, 166 AD3d 536, 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; People v Ogata, 124 AD3d 416 [1st Dept 2015], lv denied 25 NY3d 908 [2015]). We have considered and rejected defendant's remaining arguments. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 27, 2022