PEOPLE v. SEALES (2023)

Order, Supreme Court, New York County (Ellen N. Biben, J.), entered on or about November 26, 2019, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court providently exercised its discretion when it declined to grant defendant's request for a downward departure to risk level one (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant's prison record was not exceptional.  During defendant's two years in prison, he accrued six infractions, including two infractions for violent conduct (see People v. Holmes, 195 A.D.3d 528, 145 N.Y.S.3d 794 [1st Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4782530 [2021];  People v. Padro, 159 A.D.3d 651, 652, 70 N.Y.S.3d 831 [1st Dept. 2018]).  These infractions were neither trivial nor remote (see People v. Chabrier, 38 A.D.3d 355, 830 N.Y.S.2d 898 [1st Dept. 2007], lv denied 9 N.Y.3d 801, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007]).  Defendant's completion of alcohol abuse and sex offender treatment was not in and of itself exceptional (People v. Tugwell, 210 A.D.3d 507, 507–08, 176 N.Y.S.3d 490 [1st Dept. 2022], lv denied 39 N.Y.3d 911, 2023 WL 3066592 [2023];  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]).  Additionally, risk factor 12 of the RAI guidelines, for which defendant received zero points, accounted for defendant's statement of remorse, his acceptance of responsibility, and his participation in sex offender treatment (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 15–16 [2006]).