

People v Fiavachay (2019 NY Slip Op 02807)





People v Fiavachay


2019 NY Slip Op 02807


Decided on April 11, 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 April 11, 2019

Friedman, J.P., Sweeny, Webber, Gesmer, Singh, JJ.


8955 5616/04

[*1]The People of the State of New York, Respondent,
vLuis Fiavachay, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about December 11, 2012, 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 when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). Defendant's age of 65 at the time of the hearing does not establish that he has only a minimal risk of reoffense; we note that he was 54 when he committed the underlying sexual offenses (see People v Rodriguez, 146 AD3d 452 [1st Dept 2017], lv denied 29 NY3d 908 [2017]). Defendant's low
Static-99 score is insufficient to warrant a departure (see People v Rodriguez, 145 AD3d 489, 490 [1st Dept 2016], lv denied 28 NY3d 916 [2017]). The remaining mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 11, 2019
CLERK


