New York Supreme and/or Appellate Courts Appellate Division, First Department
February 28, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
People v James
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.
Decided on February 28, 2013 Tom, J.P., Sweeny, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered November 18, 2011, 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 in denying defendant's application for a downward departure (see People v Cintron, 12 NY3d 60, 70 , cert denied 558 US , 130 S Ct 552 ; People v Mingo, 12 NY3d 563, 568 n 2 ). The mitigating factors asserted by defendant were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of the underlying sex crimes against a child (see e.g. People v Melendez, 83 AD3d 448 [1st Dept 2011]). Although defendant describes his sexual relationship with the victim as consensual, we note that it began when the victim was only 11 years old.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 28, 2013
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