PEOPLE v. LAFREM (2025)

Order, Supreme Court, New York County (Althea E.M. Drysdale, J.), entered on or about December 6, 2023, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court providently exercised its discretion in declining 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]), and we perceive no basis to substitute our discretion and grant a downward departure to a level one adjudication.  Contrary to defendant's assertion, the three-step Gillotti analysis properly implements the Guidelines and applies in full regardless of the applicability of an override (see e.g. People v. Williams, 238 A.D.3d 457, 457, 231 N.Y.S.3d 489 [1st Dept. 2025] [downward departure providently denied where the defendant was subject to an override to a presumptive risk level three and “(t)he risk assessment instrument adequately took into account mitigating factors (he) cited”]).  Here, the mitigating factors cited by defendant were adequately accounted for by the risk assessment instrument (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. Palmer, 166 A.D.3d 536, 537, 86 N.Y.S.3d 717 [1st Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1409867 [2019]), and his participation in sex offender treatment while incarcerated was not so exceptional as to warrant a downward departure (see People v. Alcantara, 154 A.D.3d 532, 532, 61 N.Y.S.3d 883 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2018 WL 326534 [2018]).

In any event, the serious nature of defendant's crime, which involved him following a woman into a restroom at a nightclub after she refused to dance with him and brutally attacking her until she lost consciousness, outweighs any mitigating factors, as the egregiousness of his crime indicates a risk that reoffense would cause serious harm (see People v. Mills, 220 A.D.3d 548, 548, 199 N.Y.S.3d 22 [1st Dept. 2023], lv denied 41 N.Y.3d 908, 2024 WL 2278702 [2024];  People v. Roldan, 140 A.D.3d 411, 412, 30 N.Y.S.3d 871 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 5001245 [2016]).