PEOPLE v. ZIMMERMAN (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 18, 2019, which adjudicated defendant a level three sex 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, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant has not shown that his response to sex offender treatment was exceptional (see People v. Bonnemere, 201 A.D.3d 475, 156 N.Y.S.3d 838 [1st Dept. 2022]), or that his age (late 50s) and family support reduced his likelihood of reoffense (see People v. Talavera, 223 A.D.3d 538, 201 N.Y.S.3d 413 [1st Dept. 2024], lv denied 41 N.Y.3d 999, 213 N.Y.S.3d 746, 237 N.E.3d 812 [2024];  People v. Shaia, 221 A.D.3d 434, 198 N.Y.S.3d 54 [1st Dept. 2023], lv denied 41 N.Y.3d 906, 2024 WL 1775427 [2024]).  Any mitigating factors identified by defendant, including the fact that he did not commit any sex crimes since his release from prison (see People v. Harrison, 143 A.D.3d 470, 38 N.Y.S.3d 425 [1st Dept. 2016]), were outweighed by his extensive criminal history (see People v. Galarza, 220 A.D.3d 449, 197 N.Y.S.3d 193 [1st Dept. 2023], lv denied 41 N.Y.3d 903, 2024 WL 720113 [2024]) and the seriousness of the underlying offenses, in which he bound and raped one victim and attempted to do so to two others, including a 15–year–old child (see e.g. People v. James D., 200 A.D.3d 618, 155 N.Y.S.3d 766 [1st Dept. 2021]).