PEOPLE v. VALLEJO (2023)

Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered on or about June 6, 2022, which adjudicated defendant a level three 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 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's family support, and 10–year term of postrelease supervision were adequately taken into account by the risk assessment instrument (see People v. Lopez, 215 A.D.3d 575, 187 N.Y.S.3d 614 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6152889 [2023];  People v. Lewis, 143 A.D.3d 604, 605, 40 N.Y.S.3d 374 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628759 [2017]).  Defendant also failed to demonstrate how his age reduced his likelihood of reoffense or danger to the community (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]).

Defendant's claim that he should receive a downward departure because his removal from treatment should not have been considered a failure to accept responsibility is unpreserved (see People v. Brown, 122 A.D.3d 536, 997 N.Y.S.2d 395 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 649315 [2015]) and without merit in any event.  The court did not inappropriately rely on defendant's removal from treatment for disciplinary reasons to support its adoption of the Board's assessment of points for defendant's failure to accept responsibility (see People v. Ford, 25 N.Y.3d 939, 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 [2015]).  Rather, the record indicates that defendant's initial removal from treatment for poor participation and progress, as well as his refusal to accept responsibility in his two apology letters, sufficiently justified the court's adoption of the Board's assessment of points under risk factor 12 (see People v. Solomon, 202 A.D.3d 88, 94–97, 160 N.Y.S.3d 30 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022]).  In any event, the alleged mitigating factors identified by defendant were outweighed by the seriousness of the underlying crimes (see People v. Quinones, 123 A.D.3d 460, 997 N.Y.S.2d 71 [1st Dept. 2014]).