PEOPLE v. OTERO (2008)

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

The PEOPLE of the State of New York, Respondent, v. Rene OTERO, Defendant-Appellant.

Decided: February 21, 2008

LIPPMAN, P.J., ANDRIAS, NARDELLI, BUCKLEY, ACOSTA, JJ.

Steven Banks, The Legal Aid Society, New York (Michael C. Taglieri of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Elizabeth A. Squires of counsel), for respondent.

Order, Supreme Court, New York County (Arlene R. Silverman, J.), entered on or about October 11, 2005, which adjudicated defendant a risk level three offender pursuant to the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

Defendant, who does not contest the assessment of 165 points, well over the 110-point threshold for a level-three adjudication, asks this Court to reclassify him as a level one sex offender. We perceive no basis for a discretionary downward departure (see People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704 [2004] ). Defendant's educational and professional achievements are outweighed by the serious nature of his crimes, the age and number of victims, his prior record and his 1998 parole violation. Defendant has not shown that his academic degrees and credentials as a counselor would prevent him from reoffending; we note that defendant relapsed into substance abuse in 1998, after already becoming a counselor.

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