PEOPLE v. BRYANT (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about April 2, 2021, 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 properly assessed 20 points for unsatisfactory conduct with sexual misconduct while confined.  Although the sexual activity was allegedly consensual and occurred in the visitor room between defendant and his fiancée or girlfriend, the points were warranted because defendant's conduct violated prison disciplinary rules, and his “inability to refrain from forbidden sexual conduct ․ was relevant to his potential for sexual recidivism” (People v. Perez, 104 A.D.3d 403, 404, 961 N.Y.S.2d 51 [1st Dept. 2013] [internal quotation marks omitted], lv denied 21 N.Y.3d 858, 2013 WL 2476550 [2013];  see 7 NYCRR 270.2[B][2][i]).  In any event, even without those points, defendant remains a level three offender.

The court providently exercised its discretion in declining 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 participation in a sex offender treatment program was adequately accounted for by the risk assessment instrument (see People v. Williams, 216 A.D.3d 438, 439, 189 N.Y.S.3d 107 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6153400 [2023]).  Defendant failed to establish that his participation in sex offender treatment was “exceptional” (see People v. Alcantara, 154 A.D.3d 532, 532, 61 N.Y.S.3d 883 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2018 WL 326534 [2018]) or demonstrate how his family support would reduce his particular likelihood of reoffense or danger to the community (see People v. Roman, 198 A.D.3d 425, 426, 152 N.Y.S.3d 296 [1st Dept. 2021]).  Further, the mitigating factors were outweighed by the seriousness of the underlying crimes.