PEOPLE v. STEWART (2023)

Order, Supreme Court, New York County (Michele S. Rodney, J.), entered on or about September 16, 2019, 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 correctly assessed 10 points for unsatisfactory conduct while under supervision because, while on parole from the underlying rape conviction, defendant murdered two people during a robbery, resulting in his incarceration for many years.  Although defendant argues that the murders were exceedingly remote in time, the guidelines contain no time limits for that risk factor, and we do not find any overassessment of points.

The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The mitigating factors cited by defendant were either adequately accounted for in the risk assessment instrument or were outweighed by the heinousness of the underlying rape and defendant's criminal history (see e. g. People v. Ortiz, 160 A.D.3d 442, 74 N.Y.S.3d 34 [1st Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152560 [2018]).