People v. Lopez

People v Lopez (2023 NY Slip Op 02085)

People v Lopez

2023 NY Slip Op 02085

Decided on April 25, 2023

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 and Entered: April 25, 2023
Before: Kapnick, J.P., Kern, Friedman, Gesmer, Pitt-Burke, JJ.
Ind. No. 2340/12 Appeal No. 102 Case No. 2021-03879

Mark Zeno, Center for Appellate Litigation, New York (Leanna J. Duncan of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Jamie Masten of counsel), for respondent.

Order, Supreme Court, New York County (Maxwell Wiley, J.), entered on or about October 4, 2021, 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 providently 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. In the underlying incident, defendant brutally assaulted and raped his coworker during an overnight shift. Defendant's lack of a sex crime history, family support, rehabilitation in prison, and remorse were adequately taken into account by the risk assessment instrument (see e.g. People v Hernandez, 205 AD3d 485 [1st Dept 2022]). Defendant's participation in sex offender treatment was not exceptional (see People v Alcantara, 154 AD3d 532 [1st Dept 2017], lv denied 30 NY3d 908 [2018]). Defendant's arguments regarding his youthful age at the time of the underlying offense and at the time of a prior offense are unpreserved and unavailing.

We have considered and rejected defendant's remaining arguments, including his alternative request for a remand for further proceedings.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 25, 2023