PEOPLE v. FOY (2023)

Order, Supreme Court, New York County (James Burke, J.), entered on or about December 10, 2020, 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 properly assessed 15 points for a history of drug or alcohol abuse.  Defendant admitted to his drug and alcohol use, which began at an early age and continued up until his arrest (see People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013];  People v. Gonzalez, 157 A.D.3d 409, 409, 66 N.Y.S.3d 125 [1st Dept. 2018], lv denied 31 N.Y.3d 901, 2018 WL 1415217 [2018]).  Although defendant abstained from drugs and alcohol during his 20 years of incarceration, “such remoteness and abstinence are unreliable predictors of the risk for re-offense postrelease, or to the threat posed by the sex offender to public safety” (People v. Watson, 112 A.D.3d 501, 502–503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014]).

Defendant was also properly assessed 10 points for nonacceptance of responsibility.  Defendant consistently minimized his role in the offense and denied his guilt, undermining his claims of genuine remorse (see People v. Solomon, 202 A.D.3d 88, 95, 160 N.Y.S.3d 30 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022]).

Defendant's contention that the challenged points should be deducted based on the People's violation of the 10–day notice provision of Correction Law § 168–n(3) is unavailing.  The court provided a sufficient remedy when it offered defendant an adjournment for further preparation, which defendant declined (see People v. Quinones, 159 A.D.3d 424, 424, 69 N.Y.S.3d 469 [1st Dept. 2018]).

The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The mitigating factors cited by defendant, including his age at the time of the offense and his rehabilitative efforts while incarcerated, were adequately taken into account by the risk assessment instrument (see People v. Ortiz, 160 A.D.3d 442, 443, 74 N.Y.S.3d 34 [1st Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152560 [2018]).  Plaintiff has not established that his medical condition would reduce his risk of reoffense (see People v. Hankerson, 166 A.D.3d 569, 569, 86 N.Y.S.3d 875 [1st Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1407433 [2019]).  In any event, the mitigating factors were outweighed by the seriousness of the underlying crime.