PEOPLE v. ORTIZ (2025)

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about October 4, 2023, which adjudicated defendant a level two sex 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.  Defendant's successful completion of sex offender treatment and participation in substance abuse treatment, his lack of a prison disciplinary record, and the fact that he had not committed any prior sex offenses were adequately taken into account 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. Williams, 216 A.D.3d 438, 439, 189 N.Y.S.3d 107 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6153400 [2023]), 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 alleged mitigating factors were outweighed by the serious nature of defendant's offense and his criminal history, and we note that defendant committed the instant offense while he was released on parole for a prior violent crime (see People v. Martell, 235 A.D.3d 509, 510, 227 N.Y.S.3d 314 [1st Dept. 2025];  People v. Rochford, 220 A.D.3d 546, 546, 198 N.Y.S.3d 31 [1st Dept. 2023], lv denied 41 N.Y.3d 905, 2024 WL 1724939 [2024]).