| People v Sudderth |
| 2019 NY Slip Op 02989 |
| Decided on April 23, 2019 |
| 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 April 23, 2019
Friedman, J.P., Sweeny, Tom, Moulton, JJ.
9054 8958/98
v
Seth Sudderth, Defendant-Appellant.
Justine M. Luongo, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Order, Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about November 22, 2016, 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 10 points under the risk factor for use of violence, given the threats made by defendant in the course of his sexual abuse of a very young child (see People v Hosear, 134 AD3d 633 [1st Dept 2015]). Regardless of whether defendant's correct point score is 125, or 115 as he contends, he remains a level three offender, and we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). Defendant did not establish that his physical condition would prevent him from committing additional sex crimes, especially against young children (see People v Portalatin, 145 AD3d 463 [1st Dept 2016]; see also People v Rodriguez, 101 AD3d 630 [1st Dept 2012], lv denied 21 NY3d 851 [2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 23, 2019
CLERK