People v. Maestre

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about March 14, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sexually violent offender adjudication.

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 any mitigating factors, not already taken into account in the risk assessment instrument, that would warrant a downward departure, given the seriousness of the underlying conduct committed against a child. While conceding that the court properly assessed points for unsatisfactory conduct while confined (see People v Perez, 104 AD3d 403 [1st Dept 2013], lv denied 21 NY3d 858 [2013]; People v Salley, 67 AD3d 525 [1st Dept 2009], lv denied 14 NY3d 703 [2010]), defendant argues that the court should have exercised its discretion to assess fewer than 20 points. However, defendant would have remained a level three offender even if the court had not assessed any points under that factor. In any event, the assessment of 20 points was appropriate.