PEOPLE v. OGATA (2015)

Order, Supreme Court, New York County (Marcy Kahn, J.), entered on or about May 29, 2013, 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.

The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014] ). There were no mitigating factors, of a kind not otherwise adequately taken into account by the guidelines, that would warrant a downward departure. Defendant's age and lack of a criminal record do not warrant a departure, given the seriousness of the underlying sex crimes committed against a small child and continued for many years. Defendant's assertion that he should receive a departure because incest offenders allegedly pose a low risk of reoffense is without merit (see People v. Rodriguez, 67 AD3d 596 [1st Dept 2009], lv denied 14 NY3d 706 [2010] ).