People v. Concevalerio

People v Concevalerio (2021 NY Slip Op 05094)

People v Concevalerio

2021 NY Slip Op 05094

Decided on September 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: September 28, 2021
Before: Webber, J.P., Mazzarelli, González, Scarpulla, Pitt, JJ.

Ind No. 334/15 Appeal No. 14189 Case No. 2020-03966

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

v

Elpidio Concevalerio, Defendant-Appellant.

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

Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.

Order, Supreme Court, Bronx County (Martin Marcus, J.), entered on or about July 1, 2020, which adjudicated defendant a level two sexually violent sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion when it declined to grant a downward departure (see generally People v Gillotti, 23 NY3d 841 [2014]). The risk assessment instrument and guidelines adequately accounted for defendant's performance in sex offender treatment, relationship to the victim, lack of a criminal history and satisfactory conduct while incarcerated. Additionally, defendant's below average Static-99R score had only limited probative value and did not warrant a downward departure (see e.g. People v Rodriguez, 145 AD3d 489, 490 [1st Dept 2016], lv denied 28 NY3d 916 [2016]; People v Roldan, 140 AD3d 411 [1st Dept 2016], lv denied 28 NY3d 904 [2016]). In any event, the claimed mitigating factors were outweighed by the seriousness of defendant's sexual conduct against a child.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 28, 2021