

People v Middleton (2019 NY Slip Op 02416)





People v Middleton


2019 NY Slip Op 02416


Decided on March 28, 2019


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 28, 2019

Renwick, J.P., Richter, Kapnick, Kahn, Oing, JJ.


8817 398/09

[*1]The People of the State of New York, Respondent,
vIsaac Middleton, Defendant-Appellant.


Justine M. Luongo, The Legal Aid Society, New York (Robin V. Richardson of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (M. Callagee O'Brien of counsel), for respondent.

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about February 14, 2013, 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 properly found that clear and convincing evidence supported the assessment of 15 points under the risk factor for defendant's use of violence (causing physical injury), and 25 points under the risk factor for sexual contact with the victim (aggravated sexual abuse). These two assessments did not constitute double counting of the same injury, because they were supported by evidence of multiple injuries, separately qualifying
as physical injury under the Penal Law (see generally People v Chiddick, 8 NY3d 445 [2007]; People v Guidice, 83 NY2d 630, 636 [1994]).
The court providently exercised its discretion in declining to grant a downward departure (see People v Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors cited by defendant, including his age (mid 50s), were outweighed by the particularly violent and heinous nature of the underlying sex offense and defendant's extensive criminal record.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 28, 2019
CLERK


