PEOPLE v. RIVERA (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about March 31, 2022, 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 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 mitigating factors cited by defendant were either adequately taken into account by the risk assessment instrument (see People v. McNeill, 220 A.D.3d 518, 518, 198 N.Y.S.3d 22 [1st Dept. 2023], lv denied 41 N.Y.3d 903, 2024 WL 720313 [2024]), or outweighed by the seriousness of the underlying crime committed against a young child over the course of years (see 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]).  Defendant “failed to establish that his response to sex offender treatment was so exceptional as to warrant a downward departure,” or how his conduct in the community or family support “reduced his particular likelihood of reoffense or danger to the community” (People v. Bevel, 224 A.D.3d 430, 431, 204 N.Y.S.3d 103 [1st Dept. 2024], lv denied 42 N.Y.3d 902, 2024 WL 4125689 [2024]).