

People v Ponce (2016 NY Slip Op 08592)





People v Ponce


2016 NY Slip Op 08592


Decided on December 22, 2016


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 December 22, 2016

Friedman, J.P., Moskowitz, Webber, Kahn, Gesmer, JJ.


2519 2358/11

[*1]The People of the State of New York, Respondent,
vJuan Ponce, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert C. Mciver of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered September 23, 2015, 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 exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying crime, which consisted of sexual assaults on a child over an extended period.
The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and the court lacked discretion to do otherwise (see People v Bullock, 125 AD3d 1 [1st Dept 2014], lv denied 24 NY3d 915 [2015]).
We have considered and rejected defendant's constitutional arguments.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 22, 2016
DEPUTY CLERK


