PEOPLE v. HEATER (2022)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 22, 2022, which adjudicated defendant a level three sexually violent predicate 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 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). The court's assessment of 20 points under the risk factor for sexual misconduct while in prison was supported by clear and convincing evidence that defendant confessed to stalking a female correction officer (see People v. Faulkner, 151 A.D.3d 601, 601, 55 N.Y.S.3d 249 [1st Dept. 2017]). There was no overassessment, because the infraction evinced a chronic lack of self-control, as defendant acknowledged. In any event, defendant is a level three offender based on both his point score and the presumptive override for a prior felony sex crime conviction. The unexceptional mitigating factors cited by defendant were adequately taken into account by the guidelines or outweighed by the seriousness of defendant's crime itself and by defendant's long history of abusing young children.