PEOPLE v. DANIELS (2025)

Order, Supreme Court, Bronx County (Judith Lieb, J.), entered on or about June 1, 2022, which adjudicated defendant a level three sex 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 to grant 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]).  Even assuming, arguendo, that the 25 points assessed under risk factor 2 (sexual contact with victim) constituted an overassessment because “the victim's lack of consent was due only to an inability to consent by virtue of age” (People v. Greene, 171 A.D.3d 628, 628–629, 97 N.Y.S.3d 465 [1st Dept. 2019], lv denied 33 N.Y.3d 913, 2019 WL 4266051 [2019]), defendant's arguments that the same circumstance mandated findings of overassessment with regard to factors 4 (continuing course of sexual misconduct), 5 (age of victim), and 8 (defendant's age at first sex crime 20 or less) are unavailing.  Indeed, an assessment of points under factor 4 is always premised on the exact same conduct that constituted the defendant's crime.  Defendant fails to explain the difference in the risk represented by a person who engages in a continuing course of “consensual” unlawful sexual activity with a 14–year–old girl and one who actually coerces his victims.  In this regard, it is notable that defendant engaged in psychological coercion, essentially blackmailing the victim to perform sex acts on pain of having the videos defendant had surreptitiously taken of her engaged in oral sex published on the Internet.  Defendant's argument that he was over assessed with regard to factor 5 “because he was only a few years older than [the victim]” is similarly flawed. Even if defendant were able to demonstrate a significant overassessment in these categories, he still could not show that the court abused its discretion by denying a downward departure.  Defendant had a poor record of complying with the requirements of supervision.  In light of all of the circumstances, including defendant's extensive criminal record, the court's discretionary denial of a downward departure was proper.

Motion to strike portions of People's brief, denied.