The People of the State of New York, Respondent, v. Isaac Middleton, Defendant–Appellant. (2019)

_

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about February 14, 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 found that clear and convincing evidence supported the assessment of 15 points under the risk factor for defendant's use of violence (causing physical injury), and 25 points under the risk factor for sexual contact with the victim (aggravated sexual abuse).  These two assessments did not constitute double counting of the same injury, because they were supported by evidence of multiple injuries, separately qualifyingas physical injury under the Penal Law (see generally People v. Chiddick, 8 NY3d 445 [2007];  People v. Guidice, 83 N.Y.2d 630, 636 [1994] ).

The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 NY3d 841, 861 [2014] ).  The mitigating factors cited by defendant, including his age (mid 50s), were outweighed by the particularly violent and heinous nature of the underlying sex offense and defendant's extensive criminal record.

_

CLERK