Opinion
12-13-2016
The PEOPLE of the State of New York, Respondent, v. Johnny PARKER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Lauren J. Springer of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (William Terrell of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Lauren J. Springer of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (William Terrell of counsel), for respondent.
TOM, J.P., FRIEDMAN, SAXE, FEINMAN, KAHN, JJ.
Order, Supreme Court, Bronx County (James M. Kindler, J.), entered September 9, 2014, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Clear and convincing evidence demonstrated that defendant was "armed with a dangerous instrument" at the time of the underlying sexual offenses, justifying the assessment of 30 points under risk factor one (see People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ). The record supports the inference that, as to the first sexual attack, there was a continuing incident during which defendant pointed a handgun at the victim. In the second sexual attack on the same victim, the circumstantial evidence supported the inference that defendant was likewise armed with a handgun.
The court providently exercised its discretion in declining 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 mitigating factors on which defendant relied were adequately accounted for in the risk assessment instrument, and were outweighed by the egregiousness of defendant's conduct.