People v. Green

People v Green (2016 NY Slip Op 01609)

People v Green

2016 NY Slip Op 01609

Decided on March 8, 2016

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 March 8, 2016
Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.

437 859/12

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

v

William Green, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

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

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about September 8, 2014, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act) (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed points under the risk factors for forcible compulsion, number of victims, and age of victim. The record establishes defendant's actual use of force during the underlying sex crime, as well as his use of both express and implied threats of force. The evidence also supports the conclusion that the child who was present during the incident was a victim of defendant's sexual offense within the meaning of the guidelines, and thus qualified as both a second victim and as a child victim.

The court properly exercised its discretion when it declined to grant 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 guidelines or outweighed by aggravating factors including defendant's criminal history and prison disciplinary record.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2016

DEPUTY CLERK