| People v Massey |
| 2016 NY Slip Op 00888 |
| Decided on February 9, 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 February 9, 2016
Mazzarelli, J.P., Moskowitz, Feinman, Gische, JJ.
161 5473/01
v
James Massey, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Shannon Henderson of counsel), for respondent.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about October 1, 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.
Nonwithstanding that the court incorrectly assessed 20 points under the risk factor for physical helplessness, the court properly applied the presumptive override for infliction of serious physical injury, which results in a level three adjudication independent of any point assessments.
The court properly exercised its discretion in denying defendant's request for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately accounted for in the risk assessment instrument or, in any event, were outweighed by the seriousness of the underlying conduct.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 9, 2016
CLERK