People v. Rivera , 2024 NY Slip Op 05291 ( 2024 )

People v Rivera (2024 NY Slip Op 05291)

People v Rivera

2024 NY Slip Op 05291

Decided on October 24, 2024

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: October 24, 2024
Before: Oing, J.P., Singh, Gesmer, González, Pitt-Burke, JJ.

Ind No. 70841/21 Appeal No. 2874 Case No. 2022-01872

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

v

Domingo Rivera, Defendant-Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Bryan S. Furst of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Oliver Lee of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about March 31, 2022, 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 in declining a downward departure (see People v Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors cited by defendant were either adequately taken into account by the risk assessment instrument (see People v McNeill, 220 AD3d 518, 518 [1st Dept 2023], lv denied 41 NY3d 903 [2024]), or outweighed by the seriousness of the underlying crime committed against a young child over the course of years (see People v Palmer, 166 AD3d 536, 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]). Defendant "failed to establish that his response to sex offender treatment was so exceptional as to warrant a downward departure," or how his conduct in the community or family support "reduced his particular likelihood of reoffense or danger to the community" (People v Bevel, 224 AD3d 430, 431 [1st Dept 2024], lv denied 42 NY3d 902 [2024]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 24, 2024