People v Tracy E., 2018 NY Slip Op 09017 [167 AD3d 544]

December 27, 2018

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Tracy E., Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.

Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about February 2, 2017, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People presented clear and convincing evidence supporting the assessment of 20 points under the risk factor for number of victims ( see People v Mingo , 12 NY3d 563 [2009]). The additional conduct against the second victim was uncharged, but was reflected in a reliable police report that noted that defendant admitted to sexually abusing the second victim ( see People v Sanford , 130 AD3d 486 , 486 [1st Dept 2015], lv denied 26 NY3d 908 [2015]).

The court providently exercised its discretion in denying defendant’s request for 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 sexual conduct. The court also cited circumstances that would render a downward departure premature, and suggested that the issue be revisited (presumably by way of a modification petition under Correction Law § 168-o) at a later time. Concur—Friedman, J.P., Sweeny, Kapnick, Kahn, Singh, JJ..