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People v. Burton

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 9, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
NORRIS BURTON, DEFENDANT-APPELLANT.

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.

911/98

The hearing court providently exercised its discretion (see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; 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 [2007], lv denied 10 NY3d 701 [2008]; People v Adams, 44 AD3d 1020 [2007], 9 NY3d 818 [2008]). 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[3]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100309

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