PEOPLE v. BEARD (2024)

Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about December 11, 2020, 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, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant's successful completion of sex offender treatment and vocational programming, favorable disciplinary record, and postrelease familial support were adequately taken into account by the risk assessment instrument (see People v. Sadagheh, 214 A.D.3d 566, 183 N.Y.S.3d 853 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066638 [2023];  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]).  Defendant did not establish that his rehabilitative efforts were so exceptional as to warrant a departure (see People v. Cardona, 216 A.D.3d 518, 518–519, 189 N.Y.S.3d 474 [1st Dept. 2023]).  The potential hardship that may arise from the housing restrictions imposed on defendant as a result of his risk level three adjudication is not a mitigating circumstance.  In any event, the mitigating factors were outweighed by the persistent nature of defendant's offending behavior, which continued after his release on a prior sex crime conviction and adjudication as a risk level two offender.