PEOPLE v. SANTIAGO (2025)

Order, Supreme Court, Bronx County (John W. Carter, J.), entered on or about September 27, 2017, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act, Correctional Law art 6–C, unanimously affirmed, without costs.

The court properly assessed 10 points under risk factor one for forcible compulsion.  Defendant bit his young stepdaughter when she refused to lock the bedroom door, which was the first step of the repeated, twice-weekly incidents in which defendant sexually abused her over a period of seven months.  Under these circumstances, it can reasonably be inferred that defendant's use of force compelled his victim to submit to his ensuing acts of sexual abuse (see generally People v. Coleman, 42 N.Y.2d 500, 505, 399 N.Y.S.2d 185, 369 N.E.2d 742 [1977]).

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]).  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument (see People v. Lopez, 215 A.D.3d 575, 187 N.Y.S.3d 614 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6152889 [2023];  People v. Gomez, 201 A.D.3d 601, 157 N.Y.S.3d 724 [1st Dept. 2022]).  We reject defendant's contention that a downward departure is warranted because “intrafamilial sex offenders ․ have a significantly lower rate of sexual recidivism” (see People v. Perez, 226 A.D.3d 487, 208 N.Y.S.3d 179 [1st Dept. 2024], lv denied 42 N.Y.3d 905, 2024 WL 4229156 [2024];  People v. Ogata, 124 A.D.3d 416, 998 N.Y.S.2d 189 [1st Dept. 2015], lv denied 25 N.Y.3d 908, 2015 WL 2237492 [2015]).  Further, any mitigating factors were outweighed by the egregiousness of the continuing offenses committed by defendant against his young stepdaughter (see Perez, 226 A.D.3d at 487, 208 N.Y.S.3d 179;  Gomez, 201 A.D.3d at 601, 157 N.Y.S.3d 724).