PEOPLE v. PEREZ (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about July 15, 2021, 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 completion of sex offender treatment and anticipated postrelease support network and employment 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. Palmer, 166 A.D.3d 536, 537, 86 N.Y.S.3d 717 [1st Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1409867 [2019]).  Further, defendant has not demonstrated that his claimed support network and employment prospects decreased his particular likelihood of reoffense (see People v. Hernandez, 205 A.D.3d 485, 165 N.Y.S.3d 845 [1st Dept. 2022]).  Defendant's relationship with the victim was also adequately accounted for by the risk assessment instrument (see People v. Cook, 29 N.Y.3d 121, 53 N.Y.S.3d 238, 75 N.E.3d 655 [2017]), and we reject his contention that a downward departure is warranted because “intrafamilial sex offenders ․ have a significantly lower rate of sexual recidivism” (see People v. Ogata, 124 A.D.3d 416, 998 N.Y.S.2d 189 [1st Dept. 2015], lv denied 25 N.Y.3d 908, 2015 WL 2237492 [2015];  People v. Rodriguez, 67 A.D.3d 596, 597, 889 N.Y.S.2d 176 [1st Dept. 2009], lv denied 14 N.Y.3d 706, 2010 WL 1235656 [2010]).  Further, any mitigating factors cited were outweighed by the egregiousness of the continuing offenses committed by defendant against a young child.