PEOPLE v. TORRES (2023)

Order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on March 29, 2019, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court's assessment of 30 points under risk factor 3 for engaging in sexual conduct with three or more separate victims was supported by clear and convincing evidence, consisting of the case summary, grand jury testimony, and corroborating documents (see People v. Izzo, 26 N.Y.3d 999, 1001–02, 19 N.Y.S.3d 799, 41 N.E.3d 763 [2015];  People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]).  Nothing in the record indicated that the grand jury testimony of the arresting officer, who witnessed all three incidents, was tailored, fabricated, or otherwise not reliable hearsay (see People v. Brunson, 154 A.D.3d 499, 61 N.Y.S.3d 491 [1st Dept. 2017], lv denied, 30 N.Y.3d 908, 2018 WL 326598 [2018]).  To the extent that defendant argues that he only touched the lower back of one of the victims rather than her buttocks, this sufficed to constitute intimate contact and sexual conduct under the circumstances of this case (see People v. Sene, 66 A.D.3d 427, 427–428, 887 N.Y.S.2d 8 [1st Dept. 2009], lv denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010]).  In any event, even if the court erred when it assessed 30 points under risk factor 3, defendant does not dispute that his prior sex felony conviction automatically rendered him a presumptive level three offender.

The court providently exercised its discretion when it denied defendant's request for a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant failed to offer sufficient proof to demonstrate that his age or physical condition impacted his ability to reoffend, particularly given that he committed the underlying crimes two years earlier, at the age of 68 (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. Lopez, 146 A.D.3d 477, 45 N.Y.S.3d 52 [1st Dept. 2017], lv denied 29 N.Y.3d 904, 2017 WL 1224129 [2017]).  Defendant's repetitive and compulsive pattern of offending behavior indicated a significant risk of recidivism, which was not outweighed by the mitigating factors he cites, including his disciplinary record while incarcerated and his progress in sex offender treatment (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]).