People v. Johnson , 2022 NY Slip Op 07520 ( 2022 )

People v Johnson (2022 NY Slip Op 07520)

People v Johnson

2022 NY Slip Op 07520

Decided on December 29, 2022

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 and Entered: December 29, 2022
Before: Manzanet-Daniels, J.P., Oing, Singh, Moulton, Mendez, JJ.

Ind. No. 518-18 Appeal No. 17002 Case No. 2021-00729

[*1]The People of the State of New York, Respondent,

v

Vonte Johnson, Defendant-Appellant.

Janet E. Sabel, the Legal Aid Society, New York (Simon Greenberg of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Kalani A. Browne of counsel), for respondent.

Order, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), entered on or about July 22, 2020, which adjudicated defendant a level three predicate sex 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 (People v Gillotti, 23 NY3d 841 [2014]). Although an exceptional response to sex offender treatment may qualify as a mitigating factor not accounted for in the risk assessment instrument, defendant did not establish that his response to sex offender treatment was exceptional (see People v Bonnemere, 201 AD3d 475 [1st Dept 2022]), and the record does not support his assertion that the People conceded this point. Defendant also failed to demonstrate that his age would significantly reduce his risk of reoffense. In any case, any mitigating factors were outweighed by the seriousness of the offense and defendant's criminal history (see id. at 475). The underlying crime of possessing a sexual performance by a child, committed when defendant had already been adjudicated a level three sex offender for a prior conviction of the same offense, is defendant's third conviction for a sex crime involving young children.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 29, 2022