PEOPLE v. BROWN (2024)

Order, Supreme Court, New York County (Ellen Biben, J.), entered on or about April 27, 2022, which, after a hearing, 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 when it declined 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]).  The alleged mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by aggravating factors.  That defendant chose to victimize his 15–year–old granddaughter who was asleep and thus particularly vulnerable is a significant aggravating factor (see People v. Poole, 105 A.D.3d 654, 655, 963 N.Y.S.2d 259 [1st Dept. 2013], lv denied 21 N.Y.3d 863, 2013 WL 4516326 [2013]).  Defendant's reliance on an alternative risk assessment instrument, the Static–99R, which is not used by the Board of Examiners of Sex Offenders, is unavailing (see e.g. People v. Johns, 199 A.D.3d 529, 154 N.Y.S.3d 437 [1st Dept. 2021]).