People v Silva, 2023 NY Slip Op 00182 [212 AD3d 483]

January 17, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Eduardo Silva, Appellant.

Justine M. Luongo, The Legal Aid Society, New York (Robin Richardson of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about February 3, 2017, which adjudicated defendant a level two 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 generally People v Gillotti , 23 NY3d 841 , 861 [2014]). The mitigating factors cited by defendant were adequately considered by the guidelines or outweighed by the seriousness of the underlying crime. We do not find that there was any overassessment regarding the victim’s lack of consent, where the 35-year-old defendant met the 14-year-old victim in an online chat forum and, despite being aware of her age, proceeded to engage in a prolonged sexual relationship with her ( see People v Romulus , 189 AD3d 553 , 554-556 [1st Dept 2020], lv denied 37 NY3d 910 [2021]). Defendant also admitted a general preference for underage girls. Concur—Kapnick, J.P., Friedman, Kennedy, Mendez, Shulman, JJ..