The People of the State of New York, Respondent, v. Dutvall Guzman, Defendant–Appellant. (2016)

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Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on August 5, 2015, which adjudicated defendant a risk level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly assessed points for defendant's age at the time of the underlying sexual offense and for his unsatisfactory conduct while confined.  In any event, regardless of whether defendant's correct point score is 135 or 115 points, he remains a level three offender, and we find no basis for a downward departure (see People v. Gillotti, 23 NY3d 841 [2014] ).  There were no mitigating factors that were not adequately taken into account by the risk assessment instrument or outweighed by the egregiousness of the underlying crime.

The court properly designated defendant a sexually violent offender because he was convicted of an enumerated offense, and the court lacked discretion to do otherwise (see People v. Bullock, 125 AD3d 1 [1st Dept 2014], lv denied 24 NY3d 915 [2015] ).  There is no exception for a person such as defendant who was convicted of an enumerated offense and sentenced as a juvenile offender under Penal Law § 70.05, and his argument that he is constitutionally entitled to such an exception is unavailing.

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CLERK