| People v Russell |
| 2016 NY Slip Op 00060 |
| Decided on January 7, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 7, 2016
Tom, J.P., Mazzarelli, Richter, Gische, JJ.
3258/01 16592 16591
v
Mark Russell, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered April 15, 2014, which adjudicated 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 properly assessed 20 points under the risk factor for the victim's physical helplessness (see People v Winbush, 123 AD3d 490 [1st Dept 2014], lv denied 24 NY3d 916 [2015]; People v Howell, 82 AD3d 857, 858 [2d Dept 2011] lv denied 16 NY3d 713 [2011]). In any event, regardless of whether defendant's correct point score is 130 or 110, we find no basis for a downward departure to level two (see People v Gillotti, 23 NY3d 841 [2014]). Defendant did not demonstrate any mitigating factors
not already taken into account in the risk assessment instrument that would warrant a downward departure, given the egregiousness of defendant's sexual offense.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 7, 2016
CLERK