PEOPLE v. MARTINEZ (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about August 17, 2023, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Defendant has presented no basis which would warrant this Court exercising its discretion to grant defendant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The mitigating factors cited by defendant, including his family support and participation in treatment and vocational programs, were adequately taken into account by the risk assessment instrument (see e.g. People v. Perez, 226 A.D.3d 487, 208 N.Y.S.3d 179 [1st Dept. 2024], lv denied 42 N.Y.3d 905, 2024 WL 4229156 [2024];  People v. Bevel, 224 A.D.3d 430, 204 N.Y.S.3d 103 [1st Dept. 2024], lv denied 42 N.Y.3d 902, 2024 WL 4125689 [2024];  People v. Mills, 220 A.D.3d 548, 199 N.Y.S.3d 22 [1st Dept. 2023], lv denied 41 N.Y.3d 908, 2024 WL 2278702 [2024]).  Defendant also failed to establish that his age reduced his risk of re-offense (see People v. Butts, 238 A.D.3d 520, 234 N.Y.S.3d 480 [2025]).  Even if defendant is less likely to reoffend, a downward departure is unwarranted due to “the magnitude of harm that would result if he did reoffend” (People v. Etheridge, 149 A.D.3d 446, 446–447, 49 N.Y.S.3d 625 [1st Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2467678 [2017];  see People v. Thomas, 202 A.D.3d 450, 451, 158 N.Y.S.3d 587 [1st Dept. 2022], lv denied 38 N.Y.3d 911, 2022 WL 2165460 [2022]).