People v Gamarra-Mendoza, 2023 NY Slip Op 05477 [220 AD3d 627]

October 31, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Jose Gamarra-Mendoza, Appellant.

Twyla Carter, The Legal Aid Society, New York (Everett K. Hopkins of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.

Order, Supreme Court, Bronx County (Laurence E. Busching, J.), entered on or about May 25, 2022, which adjudicated defendant a level two 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 when it declined to grant a downward departure ( see People v Gillotti , 23 NY3d 841 [2014]). The statutory mitigating factors cited by defendant, were adequately taken into account by the risk assessment instrument, or were not shown to reduce defendant’s individual risk of reoffense ( see People v Cabrera , 91 AD3d 479 , 479-480 [1st Dept 2012], lv denied 19 NY3d 801 [2012]). In any event, these mitigating factors were outweighed by aggravating factors, including the seriousness of the underlying crime, in which he sexually abused his stepdaughter, an 11-year-old child when the abuse began, for approximately six years ( see id. at 480). Concur—Kapnick, J.P., Gesmer, Scarpulla, Rodriguez, O’Neill Levy, JJ..