The People of the State of New York, Respondent, v. Marlon Bennett, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Marlon Bennett, Defendant–Appellant.

1355 7

Decided: November 20, 2014

Saxe, J.P., Moskowitz, DeGrasse, Richter, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), for respondent.

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Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about November 29, 2012, which adjudicated defendant a level two offender under the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Although the record contains insufficient evidence to support the assessment of 10 points under the risk factor of forcible compulsion, defendant's presumptive risk level remains well within risk level two even after deducting those points.   The court properly exercised its discretion in declining to grant a downward departure (see People v. Cintron, 12 NY3d 60, 70 [2009], cert denied 558 U.S. 1011 [2009];  People v. Johnson, 11 NY3d 416, 421 [2008] ).   Defendant did not demonstrate by a preponderance of the evidence any mitigating factors that would warrant a downward departure (see People v. Gillotti, 23 NY3d 841, 861 [2014] ).   Defendant, who has a long history of past convictions, including one involving endangerment of a minor, committed a sexual offense against his minor stepdaughter.   We do not find that the mitigating factors cited by defendant warrant a downward departure to level one, when viewed in light of all the circumstances (see e.g. People v. Harrison, 74 AD3d 688 [1st Dept 2010], lv denied 15 NY3d 711 [2010] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK