People v Simmons

People v Simmons 2014 NY Slip Op 08920 Decided on December 23, 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 23, 2014
Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Kapnick, JJ.
13828 454/10

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

v

Michael Simmons, Defendant-Appellant.

Scott A. Rosenberg, The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.

Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about August 2, 2012, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-c), unanimously affirmed, without costs.

The court properly exercised its discretion when it declined to grant a downward departure to risk level one (see People v Gillotti, 23 NY3d 841 [2014]). Defendant committed a heinous crime against a particularly vulnerable victim, and his point score did not result in an overassessment of his risk to public safety. The victim was both underage and developmentally

delayed, and regardless of whether she "consented" to the initial encounter, defendant threatened the use of violence in order to compel the victim to continue against her will.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 23, 2014

CLERK