PEOPLE v. CARTER (2025)

Order, Supreme Court, New York County (Ellen Biben, J.), entered on or about June 12, 2023, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court correctly assessed 20 points under the risk factor for relationship with the victim because the People established, by clear and convincing evidence, that defendant, who was 36 years old, established a relationship with the 14–year–old victim for the purpose of victimization (see People v. Krahmalni, 170 A.D.3d 444, 444, 94 N.Y.S.3d 73 [1st Dept. 2019]).  The evidence showed that defendant met the victim at a friend's house, exchanged contact information with her under the guise of being trustworthy as a former youth counselor, and, within two months of their initial meeting, the conversations became sexual in nature.  Defendant then proposed that they meet again in person, at which time he and the victim engaged in sexual intercourse.  Defendant repeated these acts twice more, when the victim was 15 years old.  “[T]here is no possible innocent explanation for defendant's attempt to get to know the victim,” particularly in light of the relatively short time between their initial meeting and their first sexual encounter (Krahmalni, 170 A.D.3d at 444, 94 N.Y.S.3d 73).

The court providently exercised its discretion in declining to grant a downward departure from defendant's presumptive risk level (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. McNeill, 220 A.D.3d 518, 518, 198 N.Y.S.3d 22 [1st Dept. 2023], lv denied 41 N.Y.3d 903, 2024 WL 720313 [2024];  People v. Watson, 112 A.D.3d 501, 503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014]), and were outweighed by the seriousness of the underlying sex offense (see People v. Barcliff, 165 A.D.3d 533, 534, 84 N.Y.S.3d 472 [1st Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 736488 [2019]).