PEOPLE v. JACQUES (2025)

Order, Supreme Court, New York County (Michele S. Rodney, J.), entered on or about November 29, 2018, 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's assessment of 15 points each under risk factors 12 and 14 were supported by clear and convincing evidence (see generally People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]).  Regarding risk factor 12, relating to lack of acceptance of responsibility, defendant refused to participate in sex offender treatment over the more than two decades that he spent in prison (see People v. Dunning, 166 A.D.3d 405, 406, 86 N.Y.S.3d 73 [1st Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 757672 [2019]).  Moreover, in the two decades between defendant's crimes and his 2016 parole hearing, defendant never apologized or expressed remorse for his crimes, and there is no evidence that he ever expressed remorse other than in the context of requesting leniency from the Parole Board and the SORA court.

The assessment of 15 points under risk factor 14 was also supported by clear and convincing evidence that defendant would be unsupervised at the time of his release, including the case summary prepared by the Board of Examiners of Sex Offenders stating that defendant was subject to a final order of removal from the United States, and scheduled to be released to United States Immigration and Customs Enforcement for the sole purpose of his deportation (see People v. Carvente, 233 A.D.3d 491, 491, 221 N.Y.S.3d 116 [1st Dept. 2024], lv denied 43 N.Y.3d 907, 2025 WL 1688969 [2025];  see also People v. Selin–Martinez, 229 A.D.3d 646, 647, 215 N.Y.S.3d 451 [2d Dept. 2024], lv denied 42 N.Y.3d 910, 2024 WL 5160721 [2024]).

Defendant's arguments underlying his claim for a downward departure are partially unpreserved.  Although at the end of the hearing, he asked the court to clarify whether it was denying a downward departure, defendant did not make arguments during the hearing specifically in support of a downward departure nor did he seek to further litigate the issue when the court denied the application (see People v. Johnson, 130 A.D.3d 454, 454, 11 N.Y.S.3d 486 [1st Dept. 2015], lv denied 26 N.Y.3d 908, 2015 WL 6143432 [2015];  see also People v. Gillotti, 23 N.Y.3d 841, 861 n. 5, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  In any event, we find that no departure was warranted given “the egregiousness of defendant's conduct” (People v. Field, 214 A.D.3d 418, 419, 184 N.Y.S.3d 338 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066496 [2023]), where he burglarized, sexually assaulted, and robbed three separate victims at knifepoint in their homes.  The mitigating factors cited by defendant were outweighed by the extreme seriousness of the underlying pattern of repeated, predatory sex crimes (see People v. Quinones, 123 A.D.3d 460, 460, 997 N.Y.S.2d 71 [1st Dept. 2014]).