People v Etheridge

People v Etheridge 2017 NY Slip Op 02734 Decided on April 6, 2017 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 April 6, 2017
Renwick, J.P., Mazzarelli, Manzanet-Daniels, Feinman, Webber, JJ.
3650 30223/14

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

v

John Etheridge, true name John Etheredge, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.

Order, Supreme Court, New York County (Neil E. Ross, J.), entered May 11, 2015, 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]). Defendant's long period of law abiding conduct after being released from custody was outweighed by the seriousness of the underlying crime, in which defendant repeatedly raped a young child over a period of months. Even if defendant's clean record for a period of years made him significantly less likely to reoffend, the magnitude of harm that would result if he did reoffend establishes a valid reason for denial of a downward departure (see People v Cabrera, 91 AD3d 479 [2012], lv denied 19 NY3d 801 [2012]).

The remaining mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying sex offense.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 6, 2017

CLERK