People v Lopez

People v Lopez 2014 NY Slip Op 07947 Decided on November 18, 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 November 18, 2014
Tom, J.P., Renwick, Andrias, DeGrasse, Kapnick, JJ.
13508 30151/12

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

v

Antonio Lopez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett 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 (Daniel P. FitzGerald, J.), entered on or about February 22, 2013, which adjudicated defendant a level three sex 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 (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 421 [2008]). Defendant failed to demonstrate by a preponderance of the evidence any mitigating factors not already taken into account in the risk assessment instrument that would warrant such a departure (see People v Gillotti, 23 NY3d 841 [2014]). The underlying conduct was committed against a child over an extended period, and the mitigating factors cited by defendant, including his age, do not warrant a downward departure (see e.g. People v Harrison, 74 AD3d 688 [1st Dept 2010], lv denied 15 NY3d 711 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 18, 2014

CLERK