People v. Parker , 145 A.D.3d 523 ( 2016 )

People v Parker (2016 NY Slip Op 08325)

People v Parker

2016 NY Slip Op 08325

Decided on December 13, 2016

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 on December 13, 2016
Tom, J.P., Friedman, Saxe, Feinman, Kahn, JJ.

2446 6342/95

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

v

Johnny Parker, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Lauren J. Springer of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (William Terrell of counsel), for respondent.

Order, Supreme Court, Bronx County (James M. Kindler, J.), entered September 9, 2014, 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.

Clear and convincing evidence demonstrated that defendant was "armed with a dangerous instrument" at the time of the underlying sexual offenses, justifying the assessment of 30 points under risk factor one (see People v Pettigrew, 14 NY3d 406, 409 [2010]). The record supports the inference that, as to the first sexual attack, there was a continuing incident during which defendant pointed a handgun at the victim. In the second sexual attack on the same victim, the circumstantial evidence supported the inference that defendant was likewise armed with a handgun.

The court providently exercised its discretion in declining to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors on which defendant relied were

adequately accounted for in the risk assessment instrument, and were outweighed by the egregiousness of defendant's conduct.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2016

CLERK