PEOPLE v. BARADA (2026)

Order, Supreme Court, New York County (Ellen N. Biben, J.), entered on or about February 28, 2024, 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.

There is no basis for this Court to exercise its independent 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]).  Defendant's family support system and participation in sex offender treatment were adequately accounted for by the risk assessment instrument or not shown to reduce defendant's particular risk of reoffense (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. Sadagheh, 214 A.D.3d 566, 183 N.Y.S.3d 853 [1st Dept. 2023], lv denied 40 N.Y.3d 902, 2023 WL 6066638 [2023]).  Although defendant provided sufficient evidence of his physical disabilities, which were not considered by the risk assessment instrument (see People v. Williams, 148 A.D.3d 540, 49 N.Y.S.3d 671 [1st Dept. 2017]), “[d]efendant did not establish that his physical condition would prevent him from committing additional sex crimes, especially against young children” (People v. Sudderth, 171 A.D.3d 593, 96 N.Y.S.3d 852 [1st Dept. 2019], lv denied 33 N.Y.3d 913, 2019 WL 4267890 [2019];  see People v. Rodriguez, 101 A.D.3d 630, 631, 955 N.Y.S.2d 867 [1st Dept. 2012], lv denied 21 N.Y.3d 851, 2013 WL 1299941 [2013]).  Finally, “[d]efendant's law abiding conduct after being released from custody, but while under supervision, is insufficient to demonstrate that his serious threat of recidivism against children has abated” (People v. Rodriguez, 178 A.D.3d 439, 440, 111 N.Y.S.3d 171 [1st Dept. 2019], lv denied 24 N.Y.3d 915, 2015 WL 652122 [2015]).

To the extent that any of the alleged mitigating factors were not adequately accounted for by the risk assessment instrument, they were outweighed by the circumstances of the underlying offense and defendant's history, which shows a pattern of sexual abuse perpetrated against children alongside a failure to fully accept responsibility and comply with sex offender reporting requirements (see People v. Alam, 227 A.D.3d 576, 576, 211 N.Y.S.3d 344 [1st Dept. 2024], lv denied 42 N.Y.3d 907, 2024 WL 4558619 [2024]).