PEOPLE v. CRUZ (2018)

Order, Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about December 9, 2016, which adjudicated defendant a level two sexual offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Clear and convincing evidence supported the court's point assessments under the risk factors for sexual contact and continuing course of conduct.  The court correctly relied on facts contained in a California probation report recounting the victim's allegations of sexual abuse (see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ).  Although there was a difference between the conduct described in this report and the crime of which defendant was convicted after trial, we do not find that the discrepancy undermines the validity of the point assessments at issue, especially given the different standards of proof in each proceeding.

The court providently exercised its discretion in declining to grant a downward departure from defendant's presumptive risk level (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying offense and defendant's criminal history.