People v. Ogata , 998 N.Y.S.2d 189 ( 2015 )

People v Ogata (2015 NY Slip Op 00218)

People v Ogata

2015 NY Slip Op 00218

Decided on January 6, 2015

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 January 6, 2015
Mazzarelli, J.P., DeGrasse, Manzanet-Daniels, Feinman, Gische, JJ.

13885 6609/04

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

v

James Ogata, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Order, Supreme Court, New York County (Marcy Kahn, J.), entered on or about May 29, 2013, 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]). There were no mitigating factors, of a kind not otherwise adequately taken into account by the guidelines, that would warrant a downward departure. Defendant's age and lack of a criminal record do not warrant a departure, given the seriousness of the underlying sex crimes committed against a small child and continued for many years. Defendant's assertion that he should receive a departure because incest offenders allegedly pose a low risk of reoffense is without merit (see People v Rodriguez, 67 AD3d 596 [1st Dept 2009], lv denied 14 NY3d 706 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 6, 2015

CLERK