The People of the State of New York, Respondent, v. Hector Hernandez, Defendant–Appellant. (2023)

Twyla Carter, The Legal Aid Society, New York (Amy Donner of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Kalani A. Browne of counsel), for respondent.

Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered on or about June 2, 2017, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The People established by clear and convincing evidence that defendant and the victim were strangers, warranting the assessment of 20 points under the corresponding risk factor.  The evidence showed that although they were mutually acquainted with a third person, the victim met defendant for the first time on the day he raped her (see People v. Barcliff, 165 AD3d 533 [1st Dept 2018], lv denied 32 NY3d 917 [2019];  People v. Pollack, 159 AD3d 435 [1st Dept 2018], lv denied 31 NY3d 909 [2018] ).

The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014] ).  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the gravity of the underlying forcible rape of a 13–year–old child.