PEOPLE v. CABRERA FERNANDEZ (2025)

Order, Supreme Court, New York County (Ann E. Scherzer, J.), entered on or about June 28, 2023, which, after a hearing, adjudicated defendant a risk level two sexually violent sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), unanimously affirmed, without costs.

The hearing court providently denied a departure to a risk level one offender and we perceive no basis to substitute our discretion to grant a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  In declining to grant a downward departure, the SORA court properly found that the purportedly mitigating factors referenced by defendant, including a lack of disciplinary record;  completion of sex offender and substance abuse treatment programs;  vocational, occupational, and educational achievements;  and the lack of a criminal history, were all accounted for by his Risk Assessment Instrument (RAI) (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. 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];  People v. Rivera, 234 A.D.3d 605, 226 N.Y.S.3d 48 [1st Dept. 2025]).

As for defendant's sex offender treatment, while he showed improvement over time, the records indicate that he was a successful but average participant, and thus his achievements were “not so exceptional as to warrant a downward departure” (People v. Jones, 219 A.D.3d 1257, 1258, 197 N.Y.S.3d 17 [1st Dept. 2023], lv denied 41 N.Y.3d 904, 2024 WL 1161436 [2024]).

Even if defendant's mitigating factors were not fully incorporated into the RAI, “no departure is warranted where the harm would be great if he did reoffend” (People v. Cabrera, 91 A.D.3d 479, 479–480, 937 N.Y.S.2d 14 [1st Dept. 2012] [internal quotation marks omitted], lv denied 19 N.Y.3d 801, 2012 WL 1500098 [2012]), which is the case here, where the victims were young children and strangers whom defendant tried to kidnap.