PEOPLE v. WASHINGTON (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about October 27, 2017, 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 properly assessed 20 points under the risk factor for relationship with victim.  The victim's grand jury testimony “permitted a reasonable inference that she and defendant were strangers” (People v. Arnold, 126 A.D.3d 463, 464, 5 N.Y.S.3d 74 [1st Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3605063 [2015];  see also People v. Postelli, 136 A.D.3d 514, 24 N.Y.S.3d 645 [1st Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3151481 [2016]).

The court also properly assessed 10 points under the risk factor for failure to accept responsibility.  Defendant did not genuinely accept responsibility;  his statement of remorse at the SORA hearing, nearly 30 years after the offense, conflicted with his prior statements minimizing his responsibility (see People v. Solomon, 202 A.D.3d 88, 96–97, 160 N.Y.S.3d 30 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022];  People v. Hutchinson, 132 A.D.3d 606, 606–607, 18 N.Y.S.3d 612 [1st Dept. 2015], lv denied 26 N.Y.3d 918, 2016 WL 634993 [2016]).

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 contends that he did not commit any additional sex crimes in the approximately 30 years after his release from custody.  However, he had 13 subsequent convictions, including a felony conviction, which indicates an “inability to control his behavior” (People v. McCormick, 129 A.D.3d 644, 644, 12 N.Y.S.3d 87 [1st Dept. 2015], lv denied 26 N.Y.3d 908, 2015 WL 5972594 [2015]).  He also failed to show that, in his particular circumstances, his age warranted a downward departure (see People v. Bulina, 205 A.D.3d 526, 526, 166 N.Y.S.3d 525 [1st Dept. 2022], lv denied 38 N.Y.3d 914, 2022 WL 4240815 [2022]).  In any event, these factors are outweighed by the seriousness of the violent sex crime he committed at knifepoint.