PEOPLE v. BERRIOS (2025)

Order, Supreme Court, Bronx County (Alvin M. Yearwood, J.), entered on or about June 29, 2020, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Defendant subjected a family member to sexual contact that began in June 2016, when the victim was 14 years old, and lasted until November 2018.  The contact occurred while the victim was physically helpless because he was either asleep or had been bound him to a bed with zip ties by defendant.  In July 2018 defendant engaged in sexual contact with a second victim, a 15–year–old friend of the first, while the second victim was also physically helpless.  Defendant recorded a sexually explicit video of the second victim, which he threatened to show others, and provided both victims with marijuana and alcohol.

The Risk Assessment Instrument assessed 135 points against defendant, making him a presumptive risk level three offender.  The Board did not recommend any downward departure.  At the SORA hearing defendant did not dispute the Board's findings and point assessment;  however, citing factors in mitigation, he requested a downward departure to level one.

The court providently exercised its discretion in denying defendant's request for 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]).  Defendant's “vocational programming, favorable disciplinary record, and postrelease familial support were adequately taken into account by the risk assessment instrument” (People v. Beard, 223 A.D.3d 440, 441, 203 N.Y.S.3d 46 [1st Dept. 2024], lv denied 41 N.Y.3d 908, 2024 WL 2333669 [2024];  see also People v. Perez, 226 A.D.3d 487, 487, 208 N.Y.S.3d 179 [1st Dept. 2024], lv denied 42 N.Y.3d 905, 2024 WL 4229156 [2024]).  Defendant did not establish that his rehabilitative efforts were so exceptional as to warrant a departure (see Beard, 223 A.D.3d at 441, 203 N.Y.S.3d 46;  People v. Colon, 213 A.D.3d 419, 420, 180 N.Y.S.3d 910 [1st Dept. 2023], lv denied 39 N.Y.3d 914, 2023 WL 3589541 [2023]).

In any event, the mitigating factors cited by defendant were “outweighed by the seriousness of the underlying sexual offense[s]” (People v. Williams, 220 A.D.3d 512, 513, 196 N.Y.S.3d 447 [1st Dept. 2023], lv denied 41 N.Y.3d 905, 2024 WL 1724981 [2024]), which defendant perpetrated against two adolescent boys in states of physical helplessness.