Opinion
15577 Ind. No. 99002/17 Case No. 2018–1518
03-24-2022
The PEOPLE of the State of New York, Respondent, v. Nestor SUAZO–LOPEZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Gische, J.P., Mazzarelli, Friedman, Gonza´lez, Mendez, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about April 7, 2017, 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 supported the assessment of 20 points for defendant's relationship with the victims, because the underlying offenses "arose in the context of a professional ... relationship between the offender and the victim[s] and was an abuse of such relationship" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). Defendant was a Navy petty officer second class assigned to recruiting who abused his position in committing sexual offenses against two recruit applicants, resulting in his conviction by general court-martial of rape and other crimes. Contrary to defendant's arguments, under this risk factor professional relationships are not limited to those involving learned or licensed professions (see e. g. People v. Moore–Johnson, 178 A.D.3d 1102, 1103, 112 N.Y.S.3d 588 [2d Dept. 2019], lv denied 35 N.Y.3d 906, 2020 WL 3096948 [2020] ; People v. Blackwood, 129 A.D.3d 528, 11 N.Y.S.3d 157 [2015], lv denied 26 N.Y.3d 907, 2015 WL 5552659 [2015] ; People v. Stepney, 47 Misc.3d 20, 21–23, 5 N.Y.S.3d 798 [App. Term, 2d Dept., 9th and 10th Jud. Dists. 2015] ).
Clear and convincing evidence also supported the assessment of 10 points for lack of acceptance of responsibility. Defendant deserted from the Navy and fled to another country while under investigation for his offenses, which undermines his contention that he genuinely accepted responsibility for his actions (see generally People v. Solomon, 202 A.D.3d 88, 160 N.Y.S.3d 30 [1st Dept. 2021] ).
The court providently exercised its discretion when it declined 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 cited by defendant were either adequately taken into account by the guidelines, or they do not warrant a downward departure given the seriousness of defendant's underlying conduct, namely, that he abused his position as a Navy recruiter to rape one young recruit applicant and sexually abuse another (see e.g. People v. Shellman, 134 A.D.3d 517, 20 N.Y.S.3d 533 [1st Dept. 2015], lv denied 26 N.Y.3d 919, 2016 WL 699701 [2016] ).