Opinion
No. 570184/19
09-19-2024
The People of the State of New York, Respondent, v. Virgilio Tovar, Defendant-Appellant.
Unpublished Opinion
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
PER CURIAM.
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Ilana J. Marcus, J.), entered February 22, 2019, which, after a hearing, adjudicated him a level two sex offender under the Sex Offender Registration Act (Correction Law art. 6-C).
Order (Ilana J. Marcus, J.), entered February 22, 2019, affirmed.
Defendant was properly adjudicated a level two sex offender. The court's assessment of 20 points under the risk factor relating to the victim's physical helplessness was supported by clear and convincing evidence. The victim's supporting deposition stating that she was asleep and woke up when she felt defendant's hand in between her legs touching her left inner thigh supports the court's finding that defendant forcibly touched the victim while she was physically helpless (see People v Badillo, 220 A.D.3d 494 [2023], lv denied 41 N.Y.3d 904 [2024]; People v Rivera, 156 A.D.3d 529 [2017]; People v Acevedo, 124 A.D.3d 500 [2015]).
The court providently exercised its discretion when it denied defendant's request for a downward departure (see People v Gillotti, 23 N.Y.3d 841, 861 [2014]). Defendant failed to offer sufficient proof to demonstrate that his age or physical condition impacted his ability to reoffend, particularly given that he committed the underlying crime at the age of 58 (see People v Rodriguez, 145 A.D.3d 489, 490 [2016], lv denied 28 N.Y.3d 916 [2017]; People v Lopez, 146 A.D.3d 477 [2017], lv denied 29 N.Y.3d 904 [2017]). Given defendant's overall criminal record, including a prior conviction for sexual assault and another forcible touching conviction, defendant demonstrated a significant risk of recidivism that was not outweighed by the mitigating factors he cites, including his progress in sex offender treatment (see People v Alcantara, 154 A.D.3d 532 [2017], lv denied 30 N.Y.3d 908 [2018]). In any event, the mitigating factors identified by defendant were already taken into account by the risk assessment instrument and, as such, provide no basis for a downward departure (see People v Diaz, 143 A.D.3d 552, 553 [2016]).