PEOPLE v. GALARZA (2023)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about April 9, 2021, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art.  6–C), unanimously modified, on the law, to the extent of deleting the 20 points assessed under factor 4, and otherwise affirmed, without costs.

Initially, as the People concede, clear and convincing evidence was lacking to support the 20 points assessed against defendant under factor 4 as it was unclear whether the two occasions of sexual misconduct alleged occurred at least 24 hours apart (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 10 [2006];  see also People v. DeDona, 102 A.D.3d 58, 64, 954 N.Y.S.2d 541 [2d Dept. 2012]).  The remaining 85 total points assessed under the risk assessment instrument were not challenged by defendant, which made him a presumptive level two risk to reoffend.

The court providently denied defendant's request for a downward departure to a risk level one.  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the offense and defendant's extensive criminal history (see generally People v. Soto, 213 A.D.3d 499, 182 N.Y.S.3d 611 [1st Dept. 2023], lv denied 39 N.Y.3d 914, 2023 WL 3589011 [2023]).  Defendant's reliance upon his advanced age as a mitigating factor, founded upon studies that his sexual drive could be diminished based on studies of advancing age, is unavailing given that he sexually offended at age 68 and he has made no showing of disabling infirmities (see Guidelines and Commentary at 5;  People v. Soto, 213 A.D.3d at 499, 182 N.Y.S.3d 611).