People v Rios

People v Rios 2022 NY Slip Op 05665 Decided on October 11, 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: October 11, 2022
Before: Gische, J.P., Kern, Gesmer, Rodriguez, Pitt, JJ.
Index No. 3307/16 Appeal No. 16392 Case No. 2021-00837

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

v

Fernandez Rios, Defendant-Appellant.

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

Darcel D. Clark, District Attorney, Bronx (Morgan Namian of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J,), entered on or about January 15, 2021, which adjudicated defendant a level three sex 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 People v Gillotti, 23 NY3d 841, 861 [2014]). Defendant failed to meet his burden to show that his participation in sex offender treatment was so exceptional as to warrant a downward departure (see People v Alcantara, 154 AD3d 532 [1st Dept 2017], lv denied 30 NY3d 908 [2018]). There was no overassessment regarding substance abuse, where defendant admitted to having abused substances at the time of the underlying offense, and his abstinence from substances while incarcerated has little significance (see People v Watson, 112 AD3d 501, 502-503 [1st Dept 2013], lv denied 22 NY3d 863 [2014]). The other mitigating factors identified by defendant were either already taken into account by the risk assessment instrument or were outweighed by the seriousness of the offense and defendant's criminal history.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 11, 2022