PEOPLE v. SINGLETON (2021)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 17, 2014, 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 exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).  Defendant does not dispute that his prior second-degree robbery subjected him to a 30–point assessment for having committed a violent felony as defined by statute.  Instead, he argues that a downward departure is warranted because the conviction was based on only his being “aided by another” (Penal Law § 160.10[1] ), and that the lack of actual violence involved is a mitigating factor not adequately accounted for in the risk assessment instrument.  However, that type of robbery is inherently violent, because it necessarily involves “forcible stealing” (Penal Law § 160.00), and the participation of more than one robber poses “a threat of additional violence” (People v. Dennis, 146 A.D.2d 708, 708, 537 N.Y.S.2d 204 [2d Dept. 1989], affd 75 N.Y.2d 821, 552 N.Y.S.2d 559, 551 N.E.2d 1237 [1990];  see also People v. Sanchez, 13 N.Y.3d 554, 565, 893 N.Y.S.2d 803, 921 N.E.2d 570 [2009] ).  In any event, this alleged mitigating factor, taken together with the other mitigating factors cited by defendant, are outweighed by several aggravating factors.