PEOPLE v. SHAIA (2023)

Order, Supreme Court, New York County (Daniel Conviser, J.), entered on or about December 18, 2018, 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 in denying defendant's request for a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant's conduct while incarcerated, progress in sex offender treatment, plans for postrelease living, and expressions of remorse were adequately taken into account by the risk assessment instrument (see People v. Brown, 213 A.D.3d 437, 181 N.Y.S.3d 466 [1st Dept. 2023], lv denied 39 N.Y.3d 914, 2023 WL 3589126 [2023];  People v. Watson, 112 A.D.3d 501, 503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014]).  As to the remaining mitigating factors, defendant did not establish that his response to sex offender treatment was exceptional (see People v. Bonnemere, 201 A.D.3d 475, 156 N.Y.S.3d 838 [1st Dept. 2022]), or demonstrate that his social support system and age reduced his particular likelihood of reoffense (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]).  In any event, the mitigating factors were outweighed by the seriousness of the underlying crime, which was preceded by an escalating pattern of offending behavior toward female strangers.