PEOPLE v. AVILES (2024)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Nelson AVILES, Defendant–Appellant.

1380

Decided: January 11, 2024

Kern, J.P., Oing, Singh, Kapnick, O'Neill Levy, JJ.

Twyla Carter, The Legal Aid Society, New York (Ashley A. Baxter of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Kalani A. Browne of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about March 9, 2018, 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 court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). The egregiousness of the underlying offense, and defendant's prior similar conduct against other victims, indicate that a high degree of harm would result if defendant were to reoffend (see People v. Gajadhar, 103 A.D.3d 572, 572, 961 N.Y.S.2d 43 [1st Dept. 2013], lv denied 21 N.Y.3d 856, 2013 WL 2350339 [2013]). Defendant has not demonstrated that the mitigating factors he cites, including his age and longtime stability, warranted a downward departure.

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