People v. Parker

Order, Supreme Court, Bronx County (James M. Kindler, J.), entered September 9, 2014, 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.

Clear and convincing evidence demonstrated that defendant was “armed with a dangerous instrument” at the time of the underlying sexual offenses, justifying the assessment of 30 points under risk factor one (see People v Pettigrew, 14 NY3d 406, 409 [2010]). The record supports the inference that, as to the first sexual attack, there was a continuing incident during which defendant pointed a handgun at the victim. In the second sexual attack on the same victim, the circumstantial evidence supported the inference that defendant was likewise armed with a handgun.

The court providently exercised its discretion in declining to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors on which defendant relied were adequately accounted for in the risk assessment instrument, and were outweighed by the egregiousness of defendant’s conduct.