Opinion
11-29-2016
The PEOPLE of the State of New York, Respondent, v. Domingo PAREDES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered September 2, 2015, adjudicating 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 correctly assessed 10 points for unsatisfactory conduct while confined. The assessment, which was based on a recent tier III disciplinary violation, was supported by clear and convincing evidence (see Correction Law § 168–n[3] ; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). The existence of the violation was undisputed and it was set forth in the case summary. To the extent defendant challenges the evidence underlying the violation, we conclude that the record fails to support his claim that he was medically unable to comply with a direction to produce a urine sample for drug testing.
The court properly exercised its discretion in denying defendant's request 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 mitigating factors cited by defendant were either adequately accounted for in the risk assessment instrument or were outweighed by the seriousness of the underlying conduct and defendant's significant criminal history.
FRIEDMAN, J.P., SWEENY, SAXE, KAPNICK, GESMER, JJ., concur.