PEOPLE v. WRIGHT (2022)

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about May 12, 2015, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law, to the extent of vacating the designation as a sexually violent offender, and otherwise affirmed, without costs.

The court, which granted a departure to level two notwithstanding defendant's point score of 135, properly exercised its discretion when it declined to grant a further downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Defendant's enrollment in vocational training was adequately taken into account by the risk assessment instrument. Furthermore, defendant has not shown that this training, even if completed, would reduce his risk of reoffense or the potential for harm that might be caused by a reoffense (see e.g. People v. Hernandez, 205 A.D.3d 485, 165 N.Y.S.3d 845 [1st Dept. 2022]). In any event, this alleged mitigating factor was outweighed by the seriousness of defendant's sexual offenses.

As the People concede, because this proceeding was a redetermination under (Doe v. Pataki, 3 F. Supp. 2d 456 [1998]), the court should not have made a sexually violent offender designation (see People v. Johnson, 130 A.D.3d 454, 455, 11 N.Y.S.3d 486 [1st Dept. 2015], lv denied 26 N.Y.3d 908, 2015 WL 6143432 [2015]).