Opinion
12069 Ind. No. 5540/07 Case No. 2019-5040
10-15-2020
The PEOPLE of the State of New York, Respondent, v. Ricardo FLORES, Defendant–Appellant.
Stephen Chu, Interim Attorney–in–Charge, Office of the Appellate Defender, New York (Karena Rahall of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Stephen Chu, Interim Attorney–in–Charge, Office of the Appellate Defender, New York (Karena Rahall of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Renwick, J.P., Gesmer, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (Thomas A. Farber, J.), entered on or about November 15, 2018, which adjudicated defendant a risk level two sexually violent sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
We agree with the SORA court that the mitigating factors highlighted by defendant were already adequately accounted for by his RAI score. Accordingly, defendant did not satisfy the first two steps of the analysis articulated in People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 (2014). We therefore reject defendant's contention that the SORA court erroneously determined that it lacked discretion (see Gillotti 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [explaining that once a party satisfies Gillotti's first two steps, the court must exercise its discretion] ).
We do not find the denial of the downward departure to be an improvident exercise of discretion, nor do we grant the departure in the exercise of our own discretion.
As to the reliability of the risk assessment instrument, we reject defendant's challenge to "the choice of risk factors made by the Legislature and the Board of Examiners of Sex Offenders" ( People v. Bailey, 52 A.D.3d 336, 336, 860 N.Y.S.2d 509 [1st Dept. 2008], lv denied 11 N.Y.3d 707, 868 N.Y.S.2d 598, 897 N.E.2d 1083 [2008] ).