

People v Morales (2018 NY Slip Op 00114)





People v Morales


2018 NY Slip Op 00114


Decided on January 9, 2018


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 January 9, 2018

Tom, J.P., Kapnick, Webber, Oing, JJ.


5412 1987/13

[*1]The People of the State of New York, Respondent,
vSamuel Morales, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about November 18, 2015,, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court correctly assessed 10 points for unsatisfactory conduct while confined, based on defendant's two recent Tier III disciplinary infractions. These serious infractions were not remote in time, and the record fails to support defendant's remaining arguments against this assessment. Defendant's argument that the court improperly assessed 15 points for failure to accept responsibility is unpreserved and unavailing.
The court providently exercised its discretion in denying defendant's request for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account in the risk assessment instrument or that outweighed the seriousness of the underlying offense, which was committed against a child. The probative value of defendant's low Static-99 score test is limited because that assessment does not take into account the nature of the sexual contact with the victim or the potential harm that could be caused by reoffense (see People v Roldan, 140 AD3d 411, 412 [1st Dept 2016], lv denied 28 NY3d 904 [2016]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 9, 2018
CLERK


