People v. Pilozo , 153 A.D.3d 562 ( 2017 )

People v Pilozo (2017 NY Slip Op 05984)

People v Pilozo

2017 NY Slip Op 05984

Decided on August 2, 2017

Appellate Division, Second 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 on August 2, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.

2015-08994

[*1]People of the State of New York, respondent,

v

Daniel Pilozo, appellant.

Seymour W. James, Jr., New York, NY (Ronald Alfano of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Daniel Berman of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Mullen, J.), dated August 17, 2015, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, the Supreme Court properly assessed 20 points against him under risk factor 4 for engaging in a continuing course of sexual misconduct. The assessment of these points was supported by clear and convincing evidence in the record, including the defendant's admission recorded in the presentence report that the conduct occurred over a period of about one month (see People v Gillotti, 23 NY3d 841, 863-864; People v Alas, 140 AD3d 841; People v Lowery, 140 AD3d 1141; People v Williams, 34 AD3d 662).

The Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level designation, as he failed to establish, by a preponderance of the evidence, a mitigating factor of a kind or to a degree that is otherwise not adequately taken into account by the Sex Offender Registration Act (Correction Law art 6-C) Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]; People v Moultrie, 147 AD3d 800, 801; People v Simmons, 146 AD3d 912).

The defendant's remaining contentions are without merit.

LEVENTHAL, J.P., HALL, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court