Opinion
16635 Ind. No. 2297/04 Case No. 2019–05271
11-15-2022
The PEOPLE of the State of New York, Respondent, v. Vinerio FRANCESCHINI, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Simone Greenberg of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Simone Greenberg of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of counsel), for respondent.
Gische, J.P., Kapnick, Kern, Gesmer, Higgitt, JJ.
Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered on or about August 15, 2019, which adjudicated defendant a level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant were adequately accounted for by the risk assessment instrument, or were outweighed by the seriousness of the underlying offense and defendant's prior record of similar offenses. Defendant failed to show that his rehabilitation and response to sex offender treatment were so exemplary or exceptional as to warrant a departure (see People v. Gomez, 192 A.D.3d 602, 141 N.Y.S.3d 303 [1st Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4188894 [2021] ). The underlying crime, committed at a time when defendant had already been adjudicated a level three sex offender, resulted in defendant's third conviction for sex crimes against young children. Defendant's history presents a grave threat to the safety of children (see e. g. People v. Gillette, 189 A.D.3d 512, 133 N.Y.S.3d 796 [1st Dept. 2020] ) and defendant failed to demonstrate that his age and health problems would significantly reduce that risk.