People v. McMichael , 149 A.D.3d 670 ( 2017 )

People v McMichael (2017 NY Slip Op 03274)

People v McMichael

2017 NY Slip Op 03274

Decided on April 27, 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 April 27, 2017
Sweeny, J.P., Acosta, Renwick, Moskowitz, Kahn, JJ.

3862 30110/15

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

v

Kenneth McMichael, Defendant-Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered September 8, 2015, 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 assessed points for defendant's continuing course of sexual abuse against his daughters. In any event, regardless of whether defendant's correct point score is 105 or 85 points, he remains a level two offender, and we find no

basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument or outweighed by aggravating factors, including defendant's criminal history and failure to register as a sex offender in the state where the underlying crimes were committed.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 27, 2017

CLERK