People v Brown

People v Brown 2020 NY Slip Op 01458 Decided on March 3, 2020 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 3, 2020
Renwick, J.P., Gische, Kern, Singh, JJ.
11160 1775/80

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

v

Arthur Brown, 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 (John T. Hughes of counsel), for respondent.

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about April 2, 2018, which adjudicated defendant a level three sexually violent 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 generally People v Gillotti, 23 NY3d 841, 861 [2014]). Defendant did not meet his burden of establishing by a preponderance of the evidence that his age makes him unlikely to reoffend (see People v Rodriguez, 145 AD3d 489, 490 [1st Dept 2016] lv denied 28 NY3d 916 [2017]). Even assuming that the other mitigating factors identified by defendant at the classification hearing were not adequately taken into account by the risk assessment instrument, the court providently exercised its discretion in determining that these alleged mitigating factors were outweighed by the seriousness of the underlying offense and defendant's extensive criminal record. Defendant's remaining arguments are unpreserved and, in any event, unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2020

CLERK