People v. Colon ( 2023 )

People v Colon (2023 NY Slip Op 00498)

People v Colon

2023 NY Slip Op 00498

Decided on February 02, 2023

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: February 02, 2023
Before: Manzanet-Daniels, J.P., González, Scarpulla, Shulman, Pitt-Burke, JJ.

Ind. No. 6022/09 Appeal No. 17237 Case No. 2018-2677

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

v

Francisco Colon, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Jennifer Covais of counsel), for respondent.

Order, Supreme Court, New York County (Robert M. Stolz, J.), entered on or about June 5, 2018, which adjudicated defendant a level three 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 the underlying series of sex crimes committed against a 10 year old child. Defendant's response to sex offender treatment, prison disciplinary record, and other evidence of rehabilitation were accounted for, and were not so exceptional as to warrant a departure under the totality of circumstances. Furthermore, we do not find that defendant's point score overassesses his threat to public safety (see e.g. People v Cabrera, 91 AD3d 479, 479 [1st Dept 2012], lv denied 19 NY 801 [2012).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 2, 2023