General

The People of the State of New York, Respondent, v. Leston Kelly, Appellant

146 A.D.3d 69644 N.Y.S.3d 909·New York Supreme Court, Appellate Division·2017·NY

Concur — Friedman, J.P., Richter, Saxe, Moskowitz and Kapnick, JJ.

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Opinion

The People of the State of New York, Respondent, v Leston Kelly, Appellant. [44 NYS3d 909] [MAJORITY] Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered September 12, 2014, 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 mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying sex crimes committed against defendant’s young stepdaughter, which continued for over five years (see e.g. People v Ogata, 124 AD3d 416, 416 [1st Dept 2015], lv denied 25 NY3d 908 [2015]). Concur — Friedman, J.P., Richter, Saxe, Moskowitz and Kapnick, JJ.