People v. Kelly , 146 A.D.3d 696 ( 2017 )

People v Kelly (2017 NY Slip Op 00565)

People v Kelly

2017 NY Slip Op 00565

Decided on January 26, 2017

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 26, 2017
Friedman, J.P., Richter, Saxe, Moskowitz, Kapnick, JJ.

4380/10 2892 2891

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

v

Leston Kelly, Defendant-Appellant.

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

Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.

Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered September 12, 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.

The court providently 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 sex crimes committed against defendant's young stepdaughter, which continued for over five years (see e.g. People v Ogata, 124 AD3d 416, 416 [1st Dept 2015], lv denied 25 NY3d 908 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2017

CLERK