The People of the State of New York, Respondent, v. Gabriel Hernandez, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York, Respondent, v. Gabriel Hernandez, Defendant–Appellant.

1247 6

Decided: May 13, 2014

Tom, J.P., Acosta, Moskowitz, Gische, Clark, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Karinna M. Rossi of counsel), for respondent.


Order, Supreme Court, New York (Ronald A. Zweibel, J.), entered on or about March 7, 2012, 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 People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level two sexually violent offender adjudication.   Defendant does not contest 65 of the 75 points required for a level two adjudication.   The court properly assessed 10 points for forcible compulsion, based on evidence that defendant overpowered and grabbed the 11–year–old victim and took her to a stairway for the purpose of raping her, and tried to place his hand over her mouth to prevent her from screaming.   The court also properly assessed 15 points for failure to accept responsibility, based on statements by defendant that tended to minimize his guilt, and his unjustified refusal to participate in sex offender treatment even after a program in his native language was offered.

The court properly exercised its discretion in declining to grant a downward departure (see People v. Cintron, 12 NY3d 60, 70, cert denied sub nom.   Knox v. New York, 558 U.S. 1011 [2009];  People v. Johnson, 11 NY3d 416, 421 [2008] ).   Defendant did not demonstrate any mitigating factors, not already taken into account in the risk assessment instrument, that would warrant a downward departure, given the seriousness of the underlying conduct committed against a child.