People v Rodriguez

People v Rodriguez 2014 NY Slip Op 08375 Decided on December 2, 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 December 2, 2014
Mazzarelli, J.P., Acosta, Saxe, Clark, Kapnick, JJ.
13641 1220/07

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

v

Ovidio Rodriguez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about March 1, 2012, 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.

Although there is an insufficient basis for the assessment of points under the risk factor for drug or alcohol abuse, defendant remains a presumptive level two offender, and we find that a downward departure is not warranted (see People v Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, and were in any event outweighed by the viciousness of the underlying sex crime.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 2, 2014

CLERK