Opinion
5862 Ind. 2897/10
03-01-2018
The PEOPLE of the State of New York, Respondent, v. Ponce LOPEZ, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Tomoeh Murakami–Tse of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Tomoeh Murakami–Tse of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Acosta, P.J., Friedman, Richter, Kapnick, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 17, 2014, which adjudicated defendant a level two sex 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, 861, 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, and were in any event outweighed by the seriousness of the underlying crime. The fact that the victim's lack of consent was solely based on her age does not warrant a departure here, particularly because the crime occurred when defendant was 43 years old and the victim was 13 (see People v. Mendoza, 123 A.D.3d 417, 996 N.Y.S.2d 282 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 4 N.Y.S.3d 601, 28 N.E.3d 37 [2015] ); People v. James, 103 A.D.3d 588, 959 N.Y.S.2d 910 [1st Dept. 2013], lv denied 21 N.Y.3d 856, 969 N.Y.S.2d 442, 991 N.E.2d 216 [2013] ).