The People of the State of New York, Respondent, v. Ovidio Rodriguez, Defendant–Appellant. (2014)

Supreme Court, Appellate Division, First Department.

The People of the State of New York, Respondent, v. Ovidio Rodriguez, Defendant–Appellant.

1364 1

Decided: December 02, 2014

Mazzarelli, J.P., Acosta, Saxe, Clark, Kapnick, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (Julia Busetti of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about March 1, 2012, 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.

Although there is an insufficient basis for the assessment of points under the risk factor for drug or alcohol abuse, defendant remains a presumptive level two offender, and we find that a downward departure is not warranted (see People v. Gillotti, 23 NY3d 841, 861 [2014] ). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, and were in any event outweighed by the viciousness of the underlying sex crime.

CLERK

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