PEOPLE v. SEDA (2025)

Order, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), entered on or about October 10, 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 court providently exercised its discretion in declining to grant a downward departure (see People v. Anthony, 40 N.Y.3d 976, 978, 196 N.Y.S.3d 699, 219 N.E.3d 339 [2023]).  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying series of sex crimes committed against a seven-year-old child (see 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];  People v. Cabrera, 91 A.D.3d 479, 479, 937 N.Y.S.2d 14 [1st Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1500098 [2012]).  Defendant's response to sex offender treatment and prison disciplinary record were accounted for in the risk assessment instrument and were not so exceptional as to warrant a departure under the totality of the circumstances (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];  see also People v. Torres, 234 A.D.3d 604, 604, 226 N.Y.S.3d 49 [1st Dept. 2025], lv denied ––– N.Y.3d ––––, 2025 N.Y. Slip Op. 76619, 2025 WL 2646962 [2025]).

Furthermore, a departure was not warranted based on defendant's contention that during the six years between his offense conduct and his arrest he did not commit additional sex crimes.  Defendant was convicted of federal conspiracy charges during the same time and, by the time of the 2023 SORA hearing, was the subject of an out-of-state arrest warrant for a separate sex offense committed against a child (see People v. Washington, 233 A.D.3d 547, 547, 222 N.Y.S.3d 62 [1st Dept. 2024], lv denied ––– N.Y.3d ––––, 2025 N.Y. Slip Op. 76624, 2025 WL 2646955 [2025];  People v. Lopez, 200 A.D.3d 539, 540, 155 N.Y.S.3d 318 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1259878 [2022]), which were aggravating factors not accounted for by the risk assessment instrument (see Anthony, 40 N.Y.3d at 978, 196 N.Y.S.3d 699, 219 N.E.3d 339).