People v. Heater

208 A.D.3d 1110

175 N.Y.S.3d 56

The PEOPLE of the State of New York, Respondent,

v.John HEATER, Defendant-Appellant.

16248

SCI No. 1905/17

Case No. 2021-00822

Supreme Court, Appellate Division, First Department, New York.

Entered September 27, 2022

Robert S. Dean, Center for Appellate Litigation, New York (Zoe Root of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.

Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 22, 2022, which adjudicated defendant a level three sexually violent predicate offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently exercised its discretion in declining to grant a downward departure (see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The court's assessment of 20 points under the risk factor for sexual misconduct while in prison was supported by clear and convincing evidence that defendant confessed to stalking a female correction officer (see People v. Faulkner , 151 A.D.3d 601, 601, 55 N.Y.S.3d 249 [1st Dept. 2017] ). There was no overassessment, because the infraction evinced a chronic lack of self-control, as defendant acknowledged. In any event, defendant is a level three offender...