PEOPLE v. MILLS (2023)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 4, 2019, 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.

The court providently exercised its discretion when it declined to grant defendant's request for a downward departure to level one (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The serious nature of defendant's crime, which involved the rape of a stranger, outweighs any mitigating factors because the egregiousness of defendant's crime indicates a risk that reoffense would cause serious harm (see People v. Roldan, 140 A.D.3d 411, 30 N.Y.S.3d 871 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 5001245 [2016]).

The risk assessment instrument adequately accounted for defendant's completion of sex offender treatment, his acceptance of responsibility for his actions, and his educational achievements while in prison (see People v. Roman, 198 A.D.3d 425, 426, 152 N.Y.S.3d 296 [1st Dept. 2021];  People v. Palmer, 166 A.D.3d 536, 537, 86 N.Y.S.3d 717 [1st Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1409867 [2019]).  Moreover, because defendant was living with his family at the time of his offense, he failed to demonstrate that his familial support was a mitigating factor warranting a downward departure (see People v. McFarland, 120 A.D.3d 1121, 1122, 992 N.Y.S.2d 414 [1st Dept. 2014], lv denied 24 N.Y.3d 1053, 999 N.Y.S.2d 360, 24 N.E.3d 597 [2014]).

Defendant's contention that the People improperly relied on matters outside the record is unavailing.