Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about December 18, 2007, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Friedman, Sweeny, Nardelli, Abdus-Salaam, JJ.
The hearing court providently exercised its discretion (see People v Mingo, 12 NY3d 563, 568 n 2 ; People v Johnson, 11 NY3d 416, 418, 421 (2008) in denying defendant's request for a downward departure. Although defendant argues that his age and physical condition would militate against his reoffending, these factors did not prevent him from committing a sexual offense while incarcerated (see People v Johnson, 44 AD3d 571 , lv denied 10 NY3d 701 ; People v Adams, 44 AD3d 1020 , 9 NY3d 818 ). Defendant's claim that, notwithstanding his guilty plea, he was innocent of the underlying rape is an inappropriate basis for a downward departure. "Facts previously . . . elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated" (Correction Law § 168-n).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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