People v Lopez, 2014 NY Slip Op 07947 [122 AD3d 484]

November 18, 2014

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Antonio Lopez, Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered on or about February 22, 2013, 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 ( see People v Cintron , 12 NY3d 60, 70 [2009], cert denied 558 US 1011 [2009]; People v Johnson , 11 NY3d 416 , 421 [2008]). Defendant failed to demonstrate by a preponderance of the evidence any mitigating factors not already taken into account in the risk assessment instrument that would warrant such a departure ( see People v Gillotti , 23 NY3d 841 [2014]). The underlying conduct was committed against a child over an extended period, and the mitigating factors cited by defendant, including his age, do not warrant a downward departure ( see e.g . People v Harrison , 74 AD3d 688 [1st Dept 2010], lv denied 15 NY3d 711 [2010]). Concur—Tom, J.P., Renwick, Andrias, DeGrasse and Kapnick, JJ..