People v Hernandez, 2023 NY Slip Op 06450 [222 AD3d 495]

December 14, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Jesus Hernandez, Appellant.

Twyla Carter, The Legal Aid Society, New York (Whitney A. Robinson of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Jennifer Mitchell of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. Fitzgerald, J.), entered on or about March 17, 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 providently exercised its discretion in declining to grant a downward departure ( see People v Gillotti , 23 NY3d 841 , 861 [2014]). The mitigating factors cited by defendant were largely taken into account by the risk assessment instrument. To the extent that they were not, they were outweighed by the horrific nature of the underlying crime, in which defendant sexually assaulted his stepmother, slit her throat and stabbed her in the neck multiple times with a knife, and his continued violent and sexual behavior while incarcerated, including a vicious attack on a female corrections officer and sexual misconduct toward a female prison employee. Concur—Kapnick, J.P., Friedman, González, O’Neill Levy, JJ..