PEOPLE v. DIAZ (2025)

Order, Supreme Court, New York County (Ann E. Scherzer, J.), entered on or about February 3, 2023, 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 correctly assessed 10 points for unsatisfactory conduct while confined, based on defendant's three tier II infractions and her tier III violation (see People v. Parks, 216 A.D.3d 462, 463, 189 N.Y.S.3d 112 [1st Dept. 2023]).  Her disciplinary violations “were not remote in time, and the record fails to support defendant's remaining arguments against this assessment” (People v. Morales, 157 A.D.3d 475, 475, 66 N.Y.S.3d 432 [1st Dept. 2018], lv denied 31 N.Y.3d 903, 2018 WL 1597558 [2018]).

The court also providently denied 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]).  Defendant failed to show how the support of her family “decreased [her] particular likelihood of reoffense” (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];  see also People v. Torres, 234 A.D.3d 604, 604–605, 226 N.Y.S.3d 49 [1st Dept. 2025]), particularly given that she had “the same support network at the time of the underlying misconduct” (People v. Talavera, 223 A.D.3d 538, 538, 201 N.Y.S.3d 413 [1st Dept. 2024], lv dismissed in part, denied in part 41 N.Y.3d 999, 213 N.Y.S.3d 746, 237 N.E.3d 812 [2024]).  Further, defendant's “abstinence, while incarcerated, from using substances that are prohibited in prison was insufficient to predict [her] postrelease behavior” (People v. Sepulveda, 187 A.D.3d 448, 448, 129 N.Y.S.3d 787 [1st Dept. 2020], lv denied 36 N.Y.3d 904, 2021 WL 56566 [2021];  see also People v. Hosear, 151 A.D.3d 416, 52 N.Y.S.3d 858 [1st Dept. 2017], lv denied 30 N.Y.3d 907, 2017 WL 6330574 [2017]), and her participation in vocational and therapeutic programming in prison was “not so exceptional as to warrant a departure under the totality of circumstances” (People v. Colon, 213 A.D.3d 419, 420, 180 N.Y.S.3d 910 [1st Dept. 2023], lv denied 39 N.Y.3d 914, 2023 WL 3589541 [2023]).

In any event, to the extent defendant identified any mitigating factors, they “were outweighed by the seriousness of the underlying sexual offense[s]” (People v. Williams, 220 A.D.3d 512, 513, 196 N.Y.S.3d 447 [1st Dept. 2023], lv denied 41 N.Y.3d 905, 2024 WL 1724981 [2024]).  Defendant repeatedly victimized her own son and daughter over a period of months, “bespeak[ing] a degree of depravity indicative of a complete inability to exercise any self-control” (People v. Mantilla, 70 A.D.3d 477, 478, 894 N.Y.S.2d 418 [1st Dept. 2010], lv denied 15 N.Y.3d 706, 2010 WL 3546757 [2010]).  Thus, her designation as a level three offender was appropriate.