The People of the State of New York, Respondent, v. Ishmael Holmes, Defendant–Appellant.  Ind. No. (2021)

Case No.2018–1335

Janet E. Sabel, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Nathan Brandon Shi of counsel), for respondent.

Order, Supreme Court, New York County (Anthony J. Ferrara, J.), entered on or about July 13, 2017, which adjudicated defendant a 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 defendant 20 points for his accrual of three disciplinary violations for lewd conduct while in prison, and his claim of temporal remoteness is unavailing (see People v. Kaff, 149 AD3d 783, 784 [2d Dept 2017], lv denied 29 NY3d 916 [2017];  People v. Dukes, 104 AD3d 1230 [4th Dept 2013], lv denied 21 NY3d 856 [2013] ).

The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014] ).  All of the mitigating factors cited by defendant, including his educational achievements, his treatment history and his family support, were adequately taken into account by the guidelines, and the court properly weighed the aggravating and mitigating factors in determining that the totality of the circumstances warranted a level three adjudication.  Moreover, defendant's behavior in prison and treatment history were far from exemplary.