Opinion
12600 Ind. No. 2167/12 Case No. 2019-5052
12-10-2020
The PEOPLE of the State of New York, Respondent, v. Timothy GILLETTE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Moulton, Shulman, JJ.
Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about May 16, 2019, which adjudicated defendant a level three sexually violent 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 an indefinite adjournment of defendant's sex offender classification hearing based on the pendency of a civil commitment proceeding. We decline to revisit our previous holdings on this issue (see e. g. People v. Powell, 170 A.D.3d 413, 93 N.Y.S.3d 566 [1st Dept. 2019], lv denied 33 N.Y.3d 908, 2019 WL 2461460 [2019] ; People v. Blum, 166 A.D.3d 571, 86 N.Y.S.3d 872 [1st Dept. 2018], lv denied 32 N.Y.3d 918, 2019 WL 1348080 [2019] ).
The court properly exercised its discretion when it declined 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 override for defendant's prior felony sex conviction automatically rendered him a level three offender. The mitigating factors cited by defendant were outweighed by the disturbing circumstances of the underlying crime, in which defendant approached and sexually abused a child who was walking with her mother, as well as defendant's prior sex offense, which also involved young children. These circumstances suggest a serious risk of sexual reoffense against children, regardless of defendant's age.