PEOPLE v. SAXTON (2024)

Order, Supreme Court, Bronx County (Joseph J. Dawson, J.), entered on or about October 16, 2015, 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]).  The court adequately considered the mitigating factors by balancing them against the seriousness of the underlying sexual offenses, including defendant's sexual assaults, including rape, of his stepdaughter over a period of seven years, beginning when she was just five years old.  Defendant's mitigation arguments, including his alleged exceptional response to treatment founded on his completion of ASAT and SCOTP programs while incarcerated, were not supported by medical and/or treatment evaluations or other relevant documentation (see generally People v. Williams, 148 A.D.3d 540, 542, 49 N.Y.S.3d 671 [1st Dept. 2017]).  Moreover, the RAI took into account that defendant accepted and received treatment because he was not assessed points under factor 12, which concerns acceptance of responsibility (see People v. Krull, 208 A.D.3d 163, 167, 172 N.Y.S.3d 439 [1st Dept. 2022], appeal dismissed 39 N.Y.3d 1093, 186 N.Y.S.3d 603, 207 N.E.3d 569 [2023];  People v. Lozada, 197 A.D.3d 1073, 152 N.Y.S.3d 292 [1st Dept. 2021]).  Finally, the court appropriately denied the downward departure request because the harm that defendant would cause if he did reoffend would be great (see e.g., People v. Cabrera, 91 A.D.3d 479, 937 N.Y.S.2d 14 [1st Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1500098 [2012];  People v. Krull, 208 A.D.3d at 168, 172 N.Y.S.3d 439).