PEOPLE v. DIAZ (2023)

Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered on or about March 18, 2019, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Clear and convincing evidence established that defendant sexually abused the victim when she was younger than 10 years old, as the victim testified before the grand jury that the abuse began when she was eight and the case summary supported this testimony (Correction Law § 168–n[3];  see People v. Mingo, 12 N.Y.3d 563, 572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]).  Furthermore, Supreme Court properly assessed points under the risk factor for a history of substance abuse, as not only did defendant admit that he began using marijuana daily in his late adolescence, but also had prior convictions for drug-related offenses (see People v. Fernandez, 126 A.D.3d 453, 453, 2 N.Y.S.3d 357 [1st Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3618709 [2015]).

Supreme Court providently exercised its discretion in declining to grant a downward departure.  The alleged mitigating factors were either adequately taken into account by the risk assessment instrument or were outweighed by seriousness of the underlying offense, which was perpetrated against a young child (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014];  People v. Cabrera, 166 A.D.3d 419, 419, 85 N.Y.S.3d 1 [1st Dept. 2018]).