

People v Guardiola (2016 NY Slip Op 06746)





People v Guardiola


2016 NY Slip Op 06746


Decided on October 13, 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 October 13, 2016

Friedman, J.P., Richter, Feinman, Kapnick, Kahn, JJ.


1888 6436/09

[*1]The People of the State of New York, Respondent,
vVictor Guardiola, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.

Order, Supreme Court, New York County (Larry Stephen, J.), entered on or about August 1, 2013, which adjudicated defendant a risk level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Defendant's prior felony sex crime conviction automatically resulted in an override to risk level three (see People v Howard, 27 NY3d 337, 342 [2016]), and the court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument, and the record does not establish any basis for a downward departure. Defendant's participation in sex offender treatment while in prison was adequately taken into account, and we reject his assertion that he poses a diminished risk of reoffense (see e.g. People v McNeely, 124 AD3d 433 [1st Dept 2015] lv denied 25 NY3d 908 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 13, 2016
CLERK


