People v Reid, 2016 NY Slip Op 08164 [145 AD3d 458]

December 6, 2016

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Roger Reid, Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Order, Supreme Court, New York County (Cassandra Mullen, J.), entered June 19, 2014, 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 properly exercised its discretion in declining to grant a downward departure from defendant’s presumptive risk level three to level two ( see People v Gillotti , 23 NY3d 841 , 861 [2014]). Defendant’s speculative argument that he was not in a position to see that the 10-year-old victim was a child, since he touched her buttocks while hiding underneath a subway bench, is belied by his plea allocution. The remaining mitigating factors cited by defendant were outweighed by the seriousness of the underlying offense, defendant’s recidivism, and his two prior level three adjudications ( see People v Reid , 86 AD3d 438 [1st Dept 2011]; People v Reid , 49 AD3d 338 [1st Dept 2008], lv denied 10 NY3d 713 [2008]; see also People v Corian , 77 AD3d 590 [1st Dept 2010], lv denied 16 NY3d 705 [2011]). Concur—Renwick, J.P., Saxe, Gische and Webber, JJ..