Opinion
7407 SCI 5206/12
10-23-2018
The PEOPLE of the State of New York, Respondent, v. Jackie BARCLIFF, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Thomas A. Quinn of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Thomas A. Quinn of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Eduardo Padro´, J.), entered on or about April 16, 2015, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court correctly assessed 20 points under the risk factor for relationship (i.e.stranger) with the victim, because clear and convincing evidence established that defendant and the victim were strangers within the meaning of the Guidelines, having only met within 24 hours of the crime (see People v. Pollack, 159 A.D.3d 435, 69 N.Y.S.3d 468 [1st Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2921925 [2018] ; People v. Corn, 128 A.D.3d 436, 437, 8 N.Y.S.3d 322 [1st Dept. 2015] ), particularly where, at the time of the crime, defendant was 44 years old and the victim was 14.
We also find that there was no overassessment of points for defendant's prior record, and that the court providently exercised its discretion in declining to grant a downward departure from defendant's presumptive risk level (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 adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying offense.