PEOPLE v. VAZQUE (2025)

Order, Supreme Court, Bronx County (Laurence E. Busching, J.), entered on or about March 7, 2023, which, after a hearing, 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 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]).  The mitigating factors cited by defendant are outweighed by his criminal record, which shows a propensity to commit sex crimes, even though his prior convictions are remote in time (see People v. Acosta, 225 A.D.3d 553, 554, 207 N.Y.S.3d 485 [1st Dept. 2024], lv denied 41 N.Y.3d 910, 2024 WL 3057542 [2024];  People v. Carter, 114 A.D.3d 592, 592, 980 N.Y.S.2d 465 [1st Dept. 2014]).  Defendant also did not establish that his response to the treatment program was exceptional so as to warrant a downward departure, or that his “family support reduced his particular likelihood of reoffense or danger to the community” (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]).  Moreover, defendant's age is “not a reliable factor in determining his risk of reoffending,” particularly where he committed his most recent sex offense at the age of 66 (People v. McFarland, 120 A.D.3d 1121, 1122, 992 N.Y.S.2d 414 [1st Dept. 2014], lv denied 24 N.Y.3d 1053, 999 N.Y.S.2d 360, 24 N.E.3d 597 [2014]).