People v Heater

People v Heater 2022 NY Slip Op 05284 Decided on September 27, 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: September 27, 2022
Before: Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.
SCI No. 1905/17 Appeal No. 16248 Case No. 2021-00822

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

v

John Heater, Defendant-Appellant.

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

Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 22, 2022, which adjudicated defendant a level three sexually violent predicate 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]). The court's assessment of 20 points under the risk factor for sexual misconduct while in prison was supported by clear and convincing evidence that defendant confessed to stalking a female correction officer (see People v Faulkner, 151 AD3d 601, 601 [1st Dept 2017]). There was no overassessment, because the infraction evinced a chronic lack of self-control, as defendant acknowledged. In any event, defendant is a level three offender based on both his point score and the presumptive override for a prior felony sex crime conviction. The unexceptional mitigating factors cited by defendant were adequately taken into account by the guidelines or outweighed by the seriousness of defendant's crime itself and by defendant's long history of abusing young children.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 27, 2022