PEOPLE v. HARRIS (2025)

Order, Supreme Court, New York County (Kate Paek, J.), entered on or about March 31, 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.

Defendant's challenge to the factor 14 points for release without supervision is academic because subtraction of the 15 points assessed would render his score 90 points and would not affect the presumptive risk level (see People v. Corn, 128 A.D.3d 436, 437, 8 N.Y.S.3d 322 [1st Dept. 2015];  see People v. Mingo, 12 N.Y.3d 563, 568, n 2, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]).  In any event, clear and convincing evidence supported the assessment of 15 points under that risk factor because defendant failed to satisfactorily complete his term of probation in connection with the underlying Florida sex offense, and was required to serve a period of incarceration, after which he was released without supervision (see People v. Rivera, 212 A.D.3d 483, 484, 179 N.Y.S.3d 905 [1st Dept. 2023], lv denied 39 N.Y.3d 912, 2023 WL 3101918 [2023]).

We perceive no basis to grant a downward departure to a level one offender, which the hearing court providently denied (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant's proffered mitigating factors were adequately taken into account by the risk assessment instrument, or they were outweighed by aggravating factors such that a downward departure is not warranted (id.).