People v. James D. , 2021 NY Slip Op 07521 ( 2021 )

People v James D. (2021 NY Slip Op 07521)

People v James D.

2021 NY Slip Op 07521

Decided on December 28, 2021

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 and Entered: December 28, 2021
Before: Kern, J.P., Moulton, Mendez, Shulman, Higgitt, JJ.

Ind No. 1473/15 Appeal No. 14913 Case No. 2020-03760

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

v

James D., Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about July 13, 2020, which adjudicated defendant a level three sexually violent predicate sex 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 generally People v Gillotti, 23 NY3d 841 [2014]), and we find no basis to substitute our own discretion in this regard. 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 crime and the nature and number of his other sex offense convictions (see e.g. People v Colon, 149 AD3d 498 [1st Dept 2017], lv denied 29 NY3d 916 [2017]). In the underlying incident, defendant assaulted and attempted to rape a female stranger after following her into her apartment building. His other convictions involved forcible touching of female strangers, with one occurring six days after his guilty plea in this case. Further, the progress defendant had demonstrated occurred solely while he was in a controlled environment and is not necessarily indicative of his future conduct while at liberty. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 28, 2021