Criminal Law · MBE-tested
The People of the State of New York, Respondent, v Kenneth McMichael, Appellant
149 A.D.3d 67050 N.Y.S.3d 880·New York Supreme Court, Appellate Division·2017·NY
Concur — Sweeny, J.P., Acosta, Renwick, Moskowitz and Kahn, JJ.
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Opinion
The People of the State of New York, Respondent, v Kenneth McMichael, Appellant.
[50 NYS3d 880]
[MAJORITY]
Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered September 8, 2015, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly assessed points for defendant’s continuing course of sexual abuse against his daughters. In any event, regardless of whether defendant’s correct point score is 105 or 85 points, he remains a level two offender, and we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument or outweighed by aggravating factors, including defendant’s criminal history and failure to register as a sex offender in the state where the underlying crimes were committed.
Concur — Sweeny, J.P., Acosta, Renwick, Moskowitz and Kahn, JJ.