Opinion
5412 Ind. 1987/13
01-09-2018
The PEOPLE of the State of New York, Respondent, v. Samuel MORALES, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Tom, J.P., Kapnick, Webber, Oing, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about November 18, 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.
The court correctly assessed 10 points for unsatisfactory conduct while confined, based on defendant's two recent Tier III disciplinary infractions. These serious infractions were not remote in time, and the record fails to support defendant's remaining arguments against this assessment. Defendant's argument that the court improperly assessed 15 points for failure to accept responsibility is unpreserved and unavailing.
The court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). There were no mitigating factors that were not adequately taken into account in the risk assessment instrument or that outweighed the seriousness of the underlying offense, which was committed against a child. The probative value of defendant's low Static–99 score test is limited because that assessment does not take into account the nature of the sexual contact with the victim or the potential harm that could be caused by reoffense (see People v. Roldan, 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 5001245 [2016] ).