The People of the State of New York, Respondent, v. Esteban Rivera, Defendant–Appellant.  Ind. No. (2020)

Case No.2018–666

Janet E. Sabel, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about September 23, 2016, 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 providently exercised its discretion in declining to grant a downward departure (see generally People v. Gillotti, 23 NY3d 841, 861 [2014] ).  Under the circumstances, the seriousness of the underlying conduct, which consisted of the prolonged sexual abuse of his young grandniece, defendant's age and low Static–99 score do not warrant a departure (see People v. Rodriguez, 145 AD3d 489, 490 [1st Dept 2016], lv denied 28 NY3d 916 [2017] ).  While defendant claims that his advanced age

renders recidivism unlikely, he was elderly at the time the sexual conduct began, and he persisted in the same behavior for a period of years.