Opinion
8034 8035 Ind. 5147/10
01-08-2019
The PEOPLE of the State of New York, Respondent, v. Alexis MATOS, Jr., Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Tom, Mazzarelli, Webber, JJ.
Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about December 17, 2015, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
To the extent defendant is arguing that the court erred in assessing 15 points under the risk factor for refusing or being expelled from treatment, that claim is academic because, even if those points were subtracted, defendant would remain a level three offender (see People v. Corn, 128 A.D.3d 436, 437, 8 N.Y.S.3d 322 [1st Dept. 2015] ). In any event, the assessment was supported by clear and convincing evidence, because the record shows that defendant was expelled from treatment as a result of his own conduct. Furthermore, regardless of whether defendant's correct point score is 140 or 125, we find no basis for 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 underlying crime was committed against a 13–year–old victim at a time when defendant was 23 years old (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] ), and defendant's sexual misconduct while incarcerated demonstrated a risk of sexual recidivism.