PEOPLE v. TALAVERA (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about June 23, 2022, 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 in declining 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 remorse, acceptance of responsibility, participation in sex offender treatment, and stable living arrangements were adequately taken into account by the risk assessment instrument (see People v. Seales, 220 A.D.3d 494, 196 N.Y.S.3d 78 [1st Dept. 2023];  People v. Cabrera, 91 A.D.3d 479, 480, 937 N.Y.S.2d 14 [1st Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1500098 [2012]).  Defendant has not shown that his response to sex offender treatment was exceptional (see People v. Bonnemere, 201 A.D.3d 475, 475, 156 N.Y.S.3d 838 [1st Dept. 2022]), or established that his age (late 50s) reduced his likelihood of reoffense (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 also has not demonstrated that his family support warranted a downward departure, especially given that he had the same support network at the time of the underlying misconduct (see People v. Mills, 220 A.D.3d 548, 199 N.Y.S.3d 22 [1st Dept. 2023];  People v. Stuckey, 174 A.D.3d 454, 455, 101 N.Y.S.3d 846 [1st Dept. 2019]).  In any event, the mitigating factors, including defendant's yearslong period of offense-free living, was outweighed by the seriousness of the underlying crime, which involved a young child, and the potential harm that could result if defendant reoffends.

Motion by defendant to strike portions of the People's brief granted to the extent of striking references to the supporting deposition, and otherwise denied.