PEOPLE v. SHOWERS (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 9, 2024, which, after a hearing, adjudicated defendant a risk level three sex 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 defendant's request for a downward departure.  The mitigating factors that defendant cited were outweighed by his extensive criminal history and the heinousness of the crime (People v. Galarza, 220 A.D.3d 449, 449, 197 N.Y.S.3d 193 [1st Dept. 2023], lv denied 41 N.Y.3d 903, 2024 WL 720113 [2024];  People v. Ortiz, 160 A.D.3d 442, 443, 74 N.Y.S.3d 34 [1st Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152560 [2018]).  Defendant invited the victim to his apartment on false pretenses, kidnapped her, raped her at gunpoint, and stole her money and cellphone.  Defendant and a codefendant then tried to force the victim into prostitution.  Defendant also fired a gun at the victim's friend when she came to the victim's rescue.

The risk assessment instrument accounted for defendant's completion of sex offender treatment by assessing him zero points under factor 12, acceptance of responsibility (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]).  Although defendant made strides in treatment, he failed to demonstrate that his achievements were “so exceptional as to warrant a downward departure” (People v. Ferdinand, 237 A.D.3d 613, 614, 231 N.Y.S.3d 472 [1st Dept. 2025]).  Moreover, he failed to “present any expert testimony or other evidence at the hearing that might have allowed the SORA court to make a finding that defendant is less likely to reoffend” based on six months of participation in sex offender treatment (People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 52 N.Y.S.3d 293, 74 N.E.3d 678 [2017]).

Defendant's claim that his age of 48 makes him a lower risk is unpreserved because he failed to raise that argument before the SORA court, and we decline to review it in the interest of justice (see People v. Ross, 121 A.D.3d 440, 993 N.Y.S.2d 36 [1st Dept. 2014]).  As an alternative holding, we reject it on the merits.  Defendant offered no expert testimony “that might have allowed the SORA court to make a finding that defendant is less likely to reoffend based on his age” (Rodriguez, 145 A.D.3d at 490, 44 N.Y.S.3d 16).  Nor did defendant offer any evidence that he suffered from any “disabling infirmities” that would prevent him from reoffending (Galarza, 220 A.D.3d at 449, 197 N.Y.S.3d 193).