PEOPLE v. JONES (2023)

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

The PEOPLE of the State of New York, Respondent, v. Terrence JONES, Defendant–Appellant.

656 Decided: September 28, 2023

Webber, J.P., Friedman, González, Rodriguez, Pitt–Burke, JJ.

Twyla Carter, The Legal Aid Society, New York (Rebecca D. Martin of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.

Order, Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about December 6, 2017, 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.

Defendant was properly assessed 10 points for nonacceptance of responsibility. He consistently denied involvement in the crime, and never expressed more than generalized remorse, during his time in prison and at his parole hearing (see People v. Omaro, 202 A.D.3d 632, 632, 159 N.Y.S.3d 856 [1st Dept. 2022], lv denied 38 N.Y.3d 910, 2022 WL 2165469 [2022]; see generally People v. Solomon, 202 A.D.3d 88, 160 N.Y.S.3d 30 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022]).

The court providently exercised its discretion in declining to grant a further 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]) .¹ While defendant demonstrated that he did well in anti-violence programs, his achievements in sex offender treatment were modest and not so exceptional as to warrant a downward departure (see People v. Alcantara, 154 A.D.3d 532, 61 N.Y.S.3d 883 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2018 WL 326534 [2018]). Further, defendant has presented no expert testimony to substantiate his claim that his age reduces his risk of recidivism (see People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017]; People v. Diaz, 143 A.D.3d 552, 553, 39 N.Y.S.3d 429 [1st Dept. 2016]). The remaining mitigating factors cited by defendant, such as his prison record and family support, were adequately taken into account by the risk assessment instrument (see People v. Roman, 198 A.D.3d 425, 426, 152 N.Y.S.3d 296 [1st Dept. 2021]; People v. Malena, 186 A.D.3d 1175, 1175–1176, 129 N.Y.S.3d 326 [1st Dept. 2020], lv denied 36 N.Y.3d 907, 2021 WL 628480 [2021]).

FOOTNOTES

1. The Court granted defendant's request for a downward departure but to a level two and not a level one.

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