PEOPLE v. SMITH (2026)

Order, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), entered on or about October 3, 2022, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court providently exercised its discretion when it denied defendant's request for 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]).  Defendant has demonstrated an extremely high risk of recidivism, evidenced by his repeated convictions for forcible touching (Penal Law § 130.52) and persistent sexual abuse (Penal Law § 130.53).  These prior convictions resulted in defendant being adjudicated as a level two sex offender, which did not deter the instant offenses for forcible touching and persistent sexual abuse.  Separately, the restrictions on his housing based on his risk level three adjudication do not constitute a mitigating factor where it “has no bearing on his risk of reoffense or the threat he poses to public safety” (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]).