| People v Edwards |
| 2014 NY Slip Op 03019 [117 AD3d 418] |
| May 1, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Oneil Edwards, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Emily Anne Aldridge of counsel), forrespondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about April2, 2012, which adjudicated defendant a level two sexually violent offender pursuant tothe Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed,without costs.
Initially, we decline to dismiss this appeal on the ground that defendant has beendeported (see People vScott, 113 AD3d 491 [1st Dept 2014]). To the extent the People are arguing thatthe principles set forth in Peoplev Ventura (17 NY3d 675 [2011]) should not apply to civil appeals, we note thatthe alleged civil/criminal distinction does not support dismissal. A civil appellant'sphysical location is not normally a reason to dismiss an appeal. A notable exception is thefugitive disentitlement doctrine, which applies to "those who evade the law whilesimultaneously seeking its protection," particularly where "the appellant's absencefrustrates enforcement of the civil judgment" (Wechsler v Wechsler, 45 AD3d 470, 472 [1st Dept 2007]).No such considerations are relevant here; defendant is an involuntary deportee, not anabsconder (compare People vRodriguez, 67 AD3d 596, 597 [1st Dept 2009], lv denied 14 NY3d 706[2010]). In addition, the People have not established that defendant's absence from theUnited States renders this appeal moot.
The court properly exercised its discretion when it declined to grant a downwarddeparture (see People v Cintron, 12 NY3d 60, 70 [2009], cert denied 558US 1011 [2009]; People vJohnson, 11 NY3d 416, 421 [2008]). Defendant did not demonstrate [*2]any mitigating factors not taken into account by the riskassessment instrument that would warrant a downward departure, given the seriousnessof the underlying conduct, committed against a child. Concur—Tom, J.P.,Friedman, Andrias, Saxe and DeGrasse, JJ.