People v Fountain

People v Fountain 2014 NY Slip Op 00935 Decided on February 13, 2014 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 February 13, 2014
Gonzalez, P.J., Sweeny, Richter, Manzanet-Daniels, Clark, JJ.
11715 5644/83

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

v

James Fountain, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Lorraine
Maddalo of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval
Simchi-Levi of counsel), for respondent.

Order, Supreme Court, New York County (Roger Hayes, J.), entered on or about September 14, 2009, which adjudicated defendant a level three 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 declining to grant a downward departure to level two (see People v Cintron, 12 NY3d 60, 70, cert denied sub nom. Knox v New York, 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 418, 421 [2008]). Defendant's egregious criminal record, including the underlying sex crime, defendant's prior sex crimes against children, and his
homicide convictions, outweighs the factors he cites in support of a downward departure.

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

ENTERED: FEBRUARY 13, 2014

CLERK