PEOPLE v. SASTRE (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 7, 2020, which adjudicated defendant a level three sexually violent and predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

As the People concede, the assessment of 20 points under factor 4 was improper because it was not supported by clear and convincing evidence establishing that the multiple occasions of sexual misconduct alleged occurred at sufficiently separate intervals to qualify as a continuing course of sexual conduct (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 10 [2006];  see also People v. Tolbert, 223 A.D.3d 534, 535, 201 N.Y.S.3d 411 [1st Dept. 2024]).  The remaining 100 total points assessed under the risk assessment instrument were not challenged by defendant, which would make him a presumptive level two offender.  However, the court properly applied a presumptive override due to defendant's prior sex crime conviction (see People v. Lebron, 143 A.D.3d 535, 535, 38 N.Y.S.3d 804 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 79602 [2017]), and providently exercised its discretion when it declined to grant 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];  People v. Lebron, 143 A.D.3d at 536, 38 N.Y.S.3d 804).  The mitigating factors presented by defendant were adequately considered by the risk assessment instrument or were not shown to reduce defendant's likelihood of reoffense (see People v. Sadagheh, 214 A.D.3d 566, 183 N.Y.S.3d 853 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066638 [2023]).  In any event, any mitigating factors were outweighed by the seriousness of the underlying conduct, and the danger that a reoffense by defendant would cause a high degree of harm (see People v. Cabrera, 91 A.D.3d 479, 480, 937 N.Y.S.2d 14 [1st Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 87264 [2012]).