People v Lucero

People v Lucero 2018 NY Slip Op 03624 Decided on May 17, 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 May 17, 2018
Friedman, J.P., Sweeny, Kapnick, Kahn, Oing, JJ.
6592 375/16

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

v

Aldo Lucero, Defendant-Appellant.

Wilens & Baker, P.C., New York (Jonathan I. Edelstein of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.

Order, Supreme Court, Bronx County (Robert A. Neary, J.), entered on or about May 25, 2017, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correction Law Art 6-C), unanimously reversed, as a matter of discretion in the interest of justice, without costs, and the matter remanded for a new risk level determination.

The court's decision indicates that it did not give adequate consideration to defendant's request for a discretionary downward departure. Instead, the court appears to have misconstrued the request as limited to the risk factor for number of victims. However, a downward departure does not affect the calculation of the presumptive risk level; it is a discretionary determination that, despite the total number of points assessed and the offender's presumptive risk level, a lower risk level would be appropriate (see generally People v Gillotti, 23 NY3d 841 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 17, 2018

CLERK