People v. McNeely ( 2015 )

People v McNeely (2015 NY Slip Op 00286)

People v McNeely

2015 NY Slip Op 00286

Decided on January 8, 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 8, 2015
Sweeny, J.P., Andrias, Moskowitz, Richter, Clark, JJ.

13908 531/08

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

v

Woodrow McNeely, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about September 13, 2011, which adjudicated defendant a level two sex 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]). Defendant's successful completion of sex offender treatment while in prison was adequately taken into account by the risk assessment instrument. Defendant's assertion that he poses a diminished risk of reoffense, and thus should receive a downward departure, is without merit (see People v Rodriguez, 67 AD3d 596 [1st Dept 2009], lv denied 14 NY3d 706 [2010]). Moreover, neither defendant's age nor his purportedly "stable lifestyle" prior to the underlying conviction warranted a downward departure, given his abhorrent crime of repeatedly raping his own daughter over a period of years.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 8, 2015

CLERK