PEOPLE v. HARRIS (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered July 13, 2018, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The People offered clear and convincing evidence to support the assessment of 15 points under factor 13 in the risk assessment instrument (RAI) where defendant admitted to corrections officials, and later to the SORA court, that he had a past history of drug use, had completed an ASAT program at DOCCS, and admitted that he smoked marijuana on the date he forced his victim to have sexual intercourse with him (see People v. Van Phu Bui, 156 A.D.3d 448, 64 N.Y.S.3d 534 [1st Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1527924 [2018];  People v. Guasp, 95 A.D.3d 608, 944 N.Y.S.2d 112 [1st Dept. 2012], lv denied 19 N.Y.3d 812, 2012 WL 4017728 [2012]).

The People also offered clear and convincing evidence to support the assessment of 20 points under factor 13 for conduct that was unsatisfactory while incarcerated, including sexual misconduct (see e.g. People v. Bryant, 224 A.D.3d 415, 204 N.Y.S.3d 94 [1st Dept. 2024];  People v. Birch, 99 A.D.3d 422, 952 N.Y.S.2d 10 [1st Dept. 2012], lv denied 20 N.Y.3d 854, 2012 WL 6580162 [2012]).  Defendant accumulated 11 tier III and tier II violations combined during 24 years of incarceration, which reflected unsatisfactory conduct (see e.g. People v. Jackson, 215 A.D.3d 406, 184 N.Y.S.3d 894 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6153391 [2023]), and his argument that he should not be assessed points since he did not incur any tier III or tier II violations in the last seven years of his incarceration is unavailing considering the circumstances.

While the People demonstrated defendant's total RAI score of 120 points has the support of clear and convincing evidence in the record, and that such score would make him a presumptive level three risk to re-offend, defendant's prior felony sex offense convictions would have, in any event, warranted an automatic override of defendant's risk level to a presumptive level three risk, regardless of his point total on the RAI (see People v. DeLeon, 206 A.D.3d 430, 167 N.Y.S.3d 777 [1st Dept. 2022], lv denied 39 N.Y.3d 902, 2022 WL 14160570 [2022];  People v. Bean, 190 A.D.3d 622, 623, 139 N.Y.S.3d 67 [1st Dept. 2021], lv denied 36 N.Y.3d 913, 2021 WL 1804669 [2021]).

Defendant failed to demonstrate by a preponderance of the evidence that mitigating factors not already accounted for by the RAI existed to support his application for a downward departure, and that aggravating factors did not outweigh his evidence submitted in mitigation (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant's argument that his completion of a rigorous sex offender treatment program should be considered in mitigation is unavailing, as the completion of rehabilitation programs is taken into account by the RAI scoring unless a defendant can show exceptional participation results (see 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]), which was not demonstrated in this case.

To the extent defendant asserts his age at 56 makes him less likely to re-offend based on specified recidivist studies, this argument is unavailing where defendant offers no evidence to show how the findings in the studies relate to him, his proclivities, and his capabilities (see People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017]).

Even assuming that defendant demonstrated mitigating circumstances existed that warranted consideration, they were far outweighed by aggravating factors in this case, including defendant's two prior sexual assault convictions in addition to the instant rape conviction, his demonstrated inability to refrain from sexual assault while at liberty, his incarceration for over 40 years beginning when he was 16 years of age, his acknowledged mental problems that remain unaddressed, and his overfocus on the belief that he was the victim given his life's circumstances (see e.g. People v. Torres, 220 A.D.3d 514, 515, 198 N.Y.S.3d 308 [1st Dept. 2023], lv denied 41 N.Y.3d 908, 2024 WL 2278655 [2024]).