PEOPLE v. TOWNSEND (2024)

Order, Supreme Court, New York County (Neil E. Ross, J.), entered on or about July 11, 2022, which adjudicated defendant a level two sexually violent and predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure to a level two sex offender adjudication (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The People sustained their burden of identifying and proving aggravating factors that were not adequately taken into account by the risk assessment instrument and that tended to establish a higher likelihood of re-offense or danger to the community.  Defendant had a prior sex offender level two adjudication, prior misdemeanor convictions, and committed the present offense not long after his release (see e.g. People v. Gonzalez, 209 A.D.3d 544, 175 N.Y.S.3d 216 [1st Dept. 2022], lv denied 39 N.Y.3d 908, 2023 WL 1975617 [2023];  People v. Cruz, 182 A.D.3d 415, 119 N.Y.S.3d 857 [1st Dept. 2020], lv denied 35 N.Y.3d 914, 2020 WL 5523373 [2020];  People v. Taylor, 154 A.D.3d 524, 61 N.Y.S.3d 881 [1st Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 326938 [2018]).

Defendant's pattern of offending behavior indicated a significant risk of recidivism, which was not outweighed by the mitigating factors he cites, including his efforts at rehabilitation and his progress in sex offender treatment (see People v. Rosario, 216 A.D.3d 601, 190 N.Y.S.3d 324 [1st Dept. 2023]).