People v Ponce, 2016 NY Slip Op 08592 [145 AD3d 583]

December 22, 2016

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Juan Ponce, Appellant.

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

Darcel D. Clark, District Attorney, Bronx (Robert C. Mciver of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered September 23, 2015, 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 properly exercised its discretion when it declined to grant a downward departure ( see People v Gillotti , 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying crime, which consisted of sexual assaults on a child over an extended period.

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and the court lacked discretion to do otherwise ( see People v Bullock , 125 AD3d 1 [1st Dept 2014], lv denied 24 NY3d 915 [2015]).

We have considered and rejected defendant’s constitutional arguments. Concur—Friedman, J.P., Moskowitz, Webber, Kahn and Gesmer, JJ..