PEOPLE v. EVANS (2025)

Order, Supreme Court, Bronx County (Linda Poust–Lopez, J.), entered on or about January 23, 2024, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly assessed defendant 20 points under risk factor 3. Although the Superior Court Information charged defendant with a sex offense against only one of his sisters, the medical reports, domestic incident reports, and the SORA Board's case summary established by clear and convincing evidence that defendant raped both of his sisters (see People v. Snay, 122 A.D.3d 1012, 1013, 995 N.Y.S.2d 422 [3d Dept. 2014], lv denied 24 N.Y.3d 916, 2015 WL 688261 [2015];  see also People v. Mingo, 12 N.Y.3d 563, 571–574, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]).

The court also properly assessed defendant 20 points under risk factor 4. In her domestic incident report and medical records, the 14–year–old victim told police and medical staff that defendant had raped her several times a week since she was 12 years old.  Thus, the record before the court provided clear and convincing evidence that defendant had committed “three or more acts of sexual contact over a period of at least two weeks” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 10 [2006];  see People v. Nieves, 184 A.D.3d 515, 124 N.Y.S.3d 537 [1st Dept. 2020], lv denied 35 N.Y.3d 916, 2020 WL 6192272 [2020]).

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 RAI adequately took into account the mitigating factors presented by defendant (see 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]).  In any event, the seriousness of defendant's underlying conduct and his criminal history justified the level three sex offender adjudication and outweighed any mitigating factors (see People v. Stuckey, 174 A.D.3d 454, 455, 101 N.Y.S.3d 846 [1st Dept. 2019]).