| People v Burton |
| 2010 NY Slip Op 01845 [71 AD3d 468] |
| March 9, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Norris Burton, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), forrespondent.
Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or aboutDecember 18, 2007, which adjudicated defendant a level two sex offender pursuant to the SexOffender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The hearing court providently exercised its discretion (see People v Mingo, 12 NY3d 563, 568 n 2 [2009]; People v Johnson, 11 NY3d 416,418, 421 [2008]) in denying defendant's request for a downward departure. Although defendantargues that his age and physical condition would militate against his reoffending, these factorsdid not prevent him from committing a sexual offense while incarcerated (see People v Johnson, 44 AD3d571 [2007], lv denied 10 NY3d 701 [2008]; People v Adams, 44 AD3d 1020 [2007], 9 NY3d 818 [2008]).Defendant's claim that, notwithstanding his guilty plea, he was innocent of the underlying rape isan inappropriate basis for a downward departure. "Facts previously . . . elicited atthe time of entry of a plea of guilty shall be deemed established by clear and convincingevidence and shall not be relitigated" (Correction Law § 168-n [3]). Concur—Tom,J.P., Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ.