PEOPLE v. RIZZO (2025)

Order (Michael J. Gaffey, J.), dated June 21, 2023, affirmed.

The court providently exercised its discretion in denying defendant's request for a downward departure from his presumptive risk level two designation (see People v Gillotti, 23 NY3d 841 [2014]). The court properly assessed points under risk factors nine (number and nature of prior crimes) and ten (recency of prior sex crime). Defendant committed the underlying forcible touching offense only months after his prior forcible touching conviction; and his criminal history includes felony convictions for both first and second degree burglary, as well as convictions for driving while impaired by alcohol, third-degree assault and third-degree criminal mischief as a hate crime (see People v Garcia, 192 AD3d 833 [2021], lv denied 37 NY3d 910 [2021]). Defendant was also properly assessed 15 points under risk factor 14 for lack of supervised release (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]), “even [if] this was a matter beyond defendant's control” (see People v Tejada, 51 AD3d 472 [2008]).

We do not find any overassessment of points or mitigating factors that were inadequately taken into account by the risk assessment instrument. The evidence before the hearing court, which assessed 100 points, demonstrated defendant's “moderate risk of reoffense” (People v Mingo, 12 NY3d 563, 567 n 2 [2009]), and did not warrant a departure.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.