PEOPLE v. JOSEPH (2019)

Order, same court and Justice, entered on or about December 1, 2017, 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.

As to the appeal from the judgment of conviction, we perceive no basis for reducing the sentence.

As to defendant's civil appeal from his sex offender adjudication, we conclude that the court properly assessed 10 points under the factor for sexual contact under clothing, based on a reasonable inference that can be drawn from the victim's grand jury testimony (see People v. O'Neal, 35 A.D.3d 302, 828 N.Y.S.2d 24 [1st Dept. 2006] lv denied 8 N.Y.3d 809, 834 N.Y.S.2d 89, 865 N.E.2d 1256 [2007] ).  Regardless of whether defendant's correct point score is 85, or 80 as he claims, he remains a level two offender, and we find no basis for a discretionary downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).  There were no mitigating factors that were not adequately taken into account by the risk assessment instrument, or that outweighed the seriousness of the underlying predatory sexual conduct.