| People v Cruz |
| 2017 NY Slip Op 07539 |
| Decided on October 26, 2017 |
| 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 October 26, 2017
Tom, J.P., Manzanet-Daniels, Mazzarelli, Oing, Singh, JJ.
4824 2067/10
v
Kenny Cruz, 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 (Lee M. Pollack of counsel), for respondent.
Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about April 21, 2016, 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.
The court providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). The probative value of defendant's Static-99 score is limited because that assessment inadequately considers the underlying sex crime and the potential for harm in the event of reoffense (see People v Rodriguez, 145 AD3d 489, 490 [2016], lv denied 28 NY3d 916 [2017]; People v Roldan, 140 AD3d 411, 412 [1st Dept 2016], lv denied 28 NY3d 904 [2016]). The other mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of the underlying crime (see People v McNeely, 124 AD3d 433 [1st Dept 2015], lv denied 25 NY3d 908 [2015]).
The hearing court's incorrect reference to the clear and convincing evidence standard does not require a new hearing, because use of the correct preponderance of the evidence standard would not have affected the result (see People v Corn, 128 AD3d 436 [1st Dept 2015]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 26, 2017
CLERK