People v Gonzalez

People v Gonzalez 2012 NY Slip Op 00009 Decided on January 3, 2012 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 January 3, 2012
Gonzalez, P.J., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ.
6450 2010/78

[*1]The People of the State of New York, Respondent,

v

Hector Gonzalez, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Nancy E.
Little of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Marc A. Sherman
of counsel), for respondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about March 27, 2009, which adjudicated defendant a level two sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the adjudication to that of a level one sex offender, and otherwise affirmed, without costs.

In this unique case, we exercise our independent discretion to grant defendant a downward departure to level one (see People v Johnson, 11 NY3d 416, 421 [2008]). The underlying sex offense occurred in 1978. Since his release from prison in 1986, defendant, now 52 years old, has successfully completed sex offender treatment, has been employed, and has maintained a successful 17-year relationship with his wife. During the 25 years since his release, defendant's only conflicts with the law were alcohol-related misdemeanors and violations, committed between 1988 and 1992. Defendant addressed his drinking problem by participating in Alcoholics Anonymous, and he has been sober since 1993. There is no dispute that defendant has had no contact with the criminal justice system for the last 20 years. The unusual circumstances presented indicate a low risk of recidivism.

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

ENTERED: JANUARY 3, 2012

CLERK