People v Funez

People v Funez 2022 NY Slip Op 00381 Decided on January 25, 2022 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: January 25, 2022
Before: Gische, J.P., Webber, Mendez, Rodriguez, Pitt, JJ.
Ind. No. 589/13 Appeal No. 15137 Case No. 2017-3039

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

v

Rigoberto Funez, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant.

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

Order, Supreme Court, New York (Michael J. Obus, J.), entered on or about April 14, 2017, 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 properly exercised its discretion when it declined 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, and were outweighed by the seriousness of defendant's sex crimes against two young children. Defendant manifested a high risk of reoffense by sexually abusing one child over a period of years, and then, years later, sexually abusing the now-grown first victim's young daughter as well. Defendant has not shown that his age and family situation significantly reduce his particular risk of reoffense (see e.g. People v Rivera, 188 AD3d 609 [1st Dept 2020], lv denied 36 NY3d 910 [2021]; People v Vega, 115 AD3d 461 [1st Dept 2014], lv denied 23 NY3d 905 [2014]). His favorable Static-99 score has only limited probative value (see People v Rodriguez, 145 AD3d 489, 490 [1st Dept 2016], lv denied 28 NY3d 916 [2017]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 25, 2022