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People v. Diaz

Supreme Court of New York, First Department
Oct 10, 2023
220 A.D.3d 467 (N.Y. App. Div. 2023)

Opinion

746 Ind. No. 1867/17 Case No. 2019–03478

10-10-2023

The PEOPLE of the State of New York, Respondent, v. Angel DIAZ, Defendant–Appellant.

Twyla Carter, The Legal Aid Society, New York (Nathan R. Brown of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.


Twyla Carter, The Legal Aid Society, New York (Nathan R. Brown of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.

Manzanet–Daniels, J.P., Gesmer, Gonza´lez, Kennedy, O'Neill Levy, JJ.

Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered on or about March 18, 2019, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Clear and convincing evidence established that defendant sexually abused the victim when she was younger than 10 years old, as the victim testified before the grand jury that the abuse began when she was eight and the case summary supported this testimony ( Correction Law § 168–n[3] ; see People v. Mingo, 12 N.Y.3d 563, 572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). Furthermore, Supreme Court properly assessed points under the risk factor for a history of substance abuse, as not only did defendant admit that he began using marijuana daily in his late adolescence, but also had prior convictions for drug-related offenses (see People v. Fernandez, 126 A.D.3d 453, 453, 2 N.Y.S.3d 357 [1st Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3618709 [2015] ).

Supreme Court providently exercised its discretion in declining to grant a downward departure. The alleged mitigating factors were either adequately taken into account by the risk assessment instrument or were outweighed by seriousness of the underlying offense, which was perpetrated against a young child (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Cabrera, 166 A.D.3d 419, 419, 85 N.Y.S.3d 1 [1st Dept. 2018] ).


Summaries of

People v. Diaz

Supreme Court of New York, First Department
Oct 10, 2023
220 A.D.3d 467 (N.Y. App. Div. 2023)
Case details for

People v. Diaz

Case Details

Full title:The People of the State of New York, Respondent, v. Angel Diaz…

Court:Supreme Court of New York, First Department

Date published: Oct 10, 2023

Citations

220 A.D.3d 467 (N.Y. App. Div. 2023)
2023 N.Y. Slip Op. 5100
197 N.Y.S.3d 201

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