People v Lopez

People v Lopez 2018 NY Slip Op 01398 Decided on March 1, 2018 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 March 1, 2018
Acosta, P.J., Friedman, Richter, Kapnick, JJ.
5862 2897/10

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

v

Ponce Lopez, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Tomoeh Murakami-Tse of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 17, 2014, 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 providently exercised its discretion in declining to grant a downward departure (see People v Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors cited by defendant were adequately accounted for by the risk assessment instrument, and were in any event outweighed by the seriousness of the underlying crime. The fact that the victim's lack of consent was solely based on her age does not warrant a departure here, particularly because the crime occurred when defendant was 43 years old and the victim was 13 (see People v Mendoza, 123 AD3d 417 [1st Dept 2014], lv denied 24 NY3d 915 [2015]); People v James, 103 AD3d 588 [1st Dept 2013], lv denied 21 NY3d 856 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 1, 2018

CLERK