People v Cruz

People v Cruz 2012 NY Slip Op 08235 Decided on November 29, 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 November 29, 2012
Andrias, J.P., Friedman, DeGrasse, Román, Gische, JJ.
8674 30174/10

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

v

Heriberto Cruz, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sara M.
Zausmer of counsel), for respondent.

Order, Supreme Court, New York County (Eduardo Padro, J.), entered on or about February 7, 2012, which adjudicated defendant a level two sex offender and sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion in denying defendant's application for a downward departure (see generally People v Pettigrew, 14 NY3d 406, 409 [2010]; People v Mingo, 12 NY3d 563, 568 n 2 [2009]). The underlying criminal conduct against a child was very serious, and defendant's point score was well in excess of the threshold for level two. We have considered the mitigating factors and other information cited by
defendant, and we find that they do not warrant a conclusion that defendant presents a low risk of reoffense.

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

ENTERED: NOVEMBER 29, 2012

CLERK