People v Gomez

People v Gomez 2021 NY Slip Op 01861 Decided on March 25, 2021 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 and Entered: March 25, 2021
Before: Renwick, J.P., Mazzarelli, Singh, González, JJ.
Ind No. 817/13 817/13 Appeal No. 13425 Case No. 2018-2751

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

v

Olivo Gomez, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.

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

Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about November 14, 2017, which adjudicated defendant a level two sexually violent offender under 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 [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 crime. Defendant has not shown that his good disciplinary record, rehabilitation and response to sex offender treatment program were so exemplary or exceptional as to warrant a departure (see e.g. People v Zamora, 186 AD3d 885, 886 [2d Dept 2020], lv denied 36 NY3d 903 [2020]; People v Palmer, 166 AD3d 536 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; People v Santiago, 137 AD3d 762, 764 [2d Dept 2016], lv denied 27 NY3d 907 [2016]). We also find that the points assessed for a history of drug and alcohol abuse did not overassess defendant's risk of reoffense (see People v Watson, 112 AD3d 501, 502-503 [1st Dept 2013], lv denied 22 NY3d 863 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 25, 2021