PEOPLE v. BUTTS (2025)

Order, Supreme Court, New York County (Cori Weston, J.), entered on or about August 19, 2022, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly assessed 25 points under the risk factor relating to sexual intercourse and deviate sexual contact based on clear and convincing evidence, which included the five-year-old victim's contraction of vaginal gonorrhea, her report to the hospital staff about the sexual abuse and detailed testimony to the grand jury, and defendant's own admission to “rape” and “sexual intercourse” in treatment records (see People v. Harden, 60 A.D.3d 486, 486, 875 N.Y.S.2d 35 [1st Dept. 2009], lv dismissed & denied 12 N.Y.3d 899, 884 N.Y.S.2d 680, 912 N.E.2d 1060 [2009]).  The court also properly assessed 20 points for the abuse of two victims even though defendant was not indicted or convicted of an offense against the victim's younger sister, who had contracted gonorrhea of the eye (see People v. Epstein, 89 A.D.3d 570, 571, 933 N.Y.S.2d 239 [1st Dept. 2011]).  In treatment records, defendant identified the sister as a victim of his “sexual abuse,” admitted he gave her gonorrhea, and referred to “victims” with regard to the underlying sexual crime.  Finally, 15 points were properly assessed under the risk factor for lack of a genuine acceptance of responsibility.  Although defendant pleaded guilty to the crime, he denied guilt at his pre-sentence interview with probation officials and during treatment in 2006, refused a second round of treatment in 2018, and denied guilt at a more recent parole hearing (see People v. Williams, 96 A.D.3d 421, 422, 945 N.Y.S.2d 305 [1st Dept. 2012], lv denied 19 N.Y.3d 813, 2012 WL 4074334 [2012]).

The court providently exercised its discretion when it declined to grant a downward departure (see generally 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, including his advanced age, exemplary conduct in prison, employment prospects, and strong family and community support, were either adequately taken into account by the risk assessment instrument or not shown to reduce defendant's particular risk of reoffense (see e.g. People v. Jones, 231 A.D.3d 411, 411–412, 217 N.Y.S.3d 539 [1st Dept. 2024], lv denied 42 N.Y.3d 913, 2025 WL 554398 [2025];  People v. Sadagheh, 214 A.D.3d 566, 566, 183 N.Y.S.3d 853 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066638 [2023];  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]).  In any event, such mitigating factors were outweighed by defendant's criminal history and the seriousness of the underlying offense involving very young children (see People v. Andrew A., 187 A.D.3d 445, 445, 129 N.Y.S.3d 784 [1st Dept. 2020]).