People v Santa Cruz

People v Cruz 2018 NY Slip Op 03742 Decided on May 24, 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 24, 2018
Friedman, J.P., Gische, Andrias, Kern, Oing, JJ.
6650 30164/16

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

v

Jose Santa Cruz, Defendant-Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.

Order, Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about December 9, 2016, which adjudicated defendant a level two sexual offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Clear and convincing evidence supported the court's point assessments under the risk factors for sexual contact and continuing course of conduct. The court correctly relied on facts contained in a California probation report recounting the victim's allegations of sexual abuse (see People v Mingo, 12 NY3d 563, 573 [2009]). Although there was a difference between the conduct described in this report and the crime of which defendant was convicted after trial, we do not find that the discrepancy undermines the validity of the point assessments at issue, especially given the different standards of proof in each proceeding.

The court providently exercised its discretion in declining to grant a downward departure from defendant's presumptive risk level (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, or were outweighed by the seriousness of the underlying offense and defendant's criminal history.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2018

CLERK