PEOPLE v. DELACRUZ (2026)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about May 22, 2024, 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.

After conducting defendant's SORA hearing Supreme Court assessed defendant with 125 points.  However, the record before it did not support the assessment of the full 30 points under risk factor nine, which concerns the number and nature of defendant's prior crimes.  The record did not contain clear and convincing evidence of a 2012 youthful offender adjudication for Endangering the Welfare of a Child.  The prosecutor conceded at the hearing that she had sought to verify the existence of the adjudication but that her review of defendant's criminal history did not confirm it.

Rather than the 30–point assessment under risk factor 9, the record supports only a 15–point assessment based on the clear and convincing evidence that defendant had a prior conviction for a non-violent felony (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentaries, at 13 [2006]).

While we find that defendant should have been assessed only 15 points on this risk factor, a reduction of 15 points does not alter defendant's presumptive risk level three designation (see People v. Romulus, 189 A.D.3d 553, 554, 136 N.Y.S.3d 291 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1082, 142 N.Y.S.3d 880, 166 N.E.3d 1058 [2021] and lv denied 37 N.Y.3d 910, 2021 WL 4190158 [2021]).

The court providently exercised its discretion in declining to grant defendant's request for 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 two adjudication.  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, and his efforts while incarcerated were not so exceptional as to warrant a departure under the totality of the circumstances (see 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]).  In any event, to the extent defendant identified any mitigating factors, they “were outweighed by the seriousness of the underlying sexual offense[s]” (People v. Williams, 220 A.D.3d 512, 513, 196 N.Y.S.3d 447 [1st Dept. 2023], lv denied 41 N.Y.3d 905, 2024 WL 1724981 [2024]).