PEOPLE v. RAMIREZ (2024)

Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about February 13, 2020, which adjudicated defendant a level two sexual offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court providently denied defendant's request for a downward departure to a level one designation where clear and convincing evidence supported the assessment of points under factors 3, 5 and 7 against defendant on the Risk Assessment Instrument (RAI).  The 80 points assessed in the RAI rendered defendant a presumptive level two risk, and defendant failed to offer evidence in mitigation that was not already taken into account by the RAI (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Even assuming the existence of such evidence in mitigation, it was far outweighed by aggravating factors that were not taken into account by the RAI, the number of very young children depicted in at least 25 videos who were subject to abhorrent sexual abuse, the damage caused by defendant in disseminating such material on the internet, and sworn allegations of sexual assault by defendant from two children in Florida (see e.g. People v. Field, 214 A.D.3d 418, 419, 184 N.Y.S.3d 338 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066496 [2023];  People v. Bell, 149 A.D.3d 666, 50 N.Y.S.3d 878 [1st Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3900528 [2017]).