People v Montgomery

People v Montgomery 2014 NY Slip Op 03449 Decided on May 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 May 13, 2014
Tom, J.P., Acosta, Moskowitz, Gische, Clark, JJ.
12468 6675/06

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

v

Ernest Montgomery, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Svetlana M.
Kornfeind of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of
counsel), for respondent.

Order, Supreme Court, New York County (Carol Berkman, J.), rendered June 27, 2012, 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 assessed points for defendant's failure to accept responsibility, based on his statements recorded in the presentence report reflecting an attempt to minimize his fault in the offense. In any event, regardless of whether defendant's correct point score is 110 or 120 points, he would still be a presumptive level three offender, and we find no basis for a
downward departure (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied sub nom. Knox v New York, 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 418, 421 [2008]). The mitigating factors cited by defendant, including his age (early 50s) and lack of a prior sex crime conviction, are outweighed by his extensive criminal record, including the underlying offense, which was a crime of violence (see e.g. People v Carter, 60 AD3d 467 [1st
Dept 2009], lv denied 12 NY3d 716 [2009]).

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

ENTERED: MAY 13, 2014

CLERK