PEOPLE v. SANTOS (2025)

Order, Supreme Court, Bronx County (Margaret W. Martin, J.), entered on or about March 6, 2023, which, after a hearing, adjudicated defendant a risk level two sexually violent offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), unanimously affirmed, without costs.

The record is clear that the hearing court properly considered and rejected defendant's contention that a downward departure was warranted by his allegedly exceptional response to sex offender treatment (cf.  People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603 [2d Dept. 2011]).

Even assuming the record is unclear, remand would not be necessary, as the record with respect to defendant's arguments and evidence is sufficient for this Court to make the determination on his request (see People v. Lewis, 143 A.D.3d 604, 605, 40 N.Y.S.3d 374 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628759 [2017]).  Accordingly, as an alternative holding we decline the request for a downward departure from defendant's presumptive risk level.  Although an exceptional response to sex offender treatment may qualify as a mitigating factor not already accounted for in the RAI, the evidence concerning defendant's positive participation in a sex offender treatment program over the course of three months does not show that he had the type of exceptional response that would support a downward departure (see People v. Bonnemere, 201 A.D.3d 475, 475, 156 N.Y.S.3d 838 [1st Dept. 2022]).  At most, the evidence shows that defendant showed good, consistent participation that met the minimum requirements of the program.  Furthermore, the evidence with respect to the other alleged mitigating factors was either adequately accounted for in the RAI or was not so exceptional as to warrant a departure (see People v. Bevel, 224 A.D.3d 430, 431, 204 N.Y.S.3d 103 [1st Dept. 2024], lv denied 42 N.Y.3d 902, 2024 WL 4125689 [2024];  People v. Lopez, 215 A.D.3d 575, 575, 187 N.Y.S.3d 614 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6152889 [2023]).