People v Carreon (2014 NY Slip Op 06540)
People v Carreon
2014 NY Slip Op 06540
Decided on September 30, 2014
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 September 30, 2014Mazzarelli, J.P., Andrias, Moskowitz, Manzanet-Daniels, Clark, JJ.


13053 5456/10

[*1] The People of the State of New York, Respondent,
vEmiliano Carreon, 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 (Jared Wolkowitz of counsel), for respondent.
Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about November 21, 2012, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly exercised its discretion in declining to grant a downward departure (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 421 [2008]). Defendant did not demonstrate by a preponderance of the evidence any mitigating factors not already taken into account in the risk assessment instrument that would warrant a downward departure (see People v Gillotti, NY3d, 2014 NY Slip Op 04117, *11 [2014]). While working as a home health care attendant for a disabled person, he committed sex offenses against that person's mentally-impaired teenaged sister. We do not find that this defendant's age requires a downward departure to level one, when viewed in light of all the circumstances (see e.g. People v Harrison, 74 AD3d 688 [1st Dept 2010], lv denied 15 NY3d 711 [2010]).
We have considered and reject defendant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 30, 2014
CLERK


