PEOPLE v. MCCLAINE (2019)

Order (Shari Ruth Michels, J.), entered May 17, 2016, affirmed.

The court properly exercised its discretion in declining to grant a downward departure from defendant's presumptive risk level to level two (see People v. Gillotti, 23 NY3d 841, 861 [2014]), given the seriousness of the underlying sex crime committed against his sleeping victim and defendant's serious criminal history (see People v. Beyah, 76 AD3d 917 [2010], lv denied 15 NY3d 716 [2010]), including a prior felony conviction for third-degree rape (see Penal Law § 130.25[2]) and a conviction for failing to register as a sex offender (see People v. Dworkowitz, 170 AD3d 512, 513 [2019], lv denied 33 NY3d 910 [2019). The mitigating factors identified by defendant were already taken into account by the risk assessment instrument and, as such, provide no basis for a downward departure (see People v. Diaz, 143 AD3d 552, 553 [2016]).

The hearing court's incorrect reference to the clear and convincing evidence standard does not require a new hearing, because use of the correct preponderance of the evidence standard would not have affected the result (People v. Cruz, 154 AD3d 610 [2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.