PEOPLE v. BRACERO (2023)

Order, Supreme Court, Bronx County (James A. McCarty, J.), entered on or about June 23, 2021, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Clear and convincing evidence supported the assessment of 20 points under the risk factor for a continuous course of sexual conduct.  It may be reasonably inferred from the grand jury testimony that defendant's multiple acts of sexual intercourse with the victim occurred over the time periods required under that risk factor.  In addition, defendant's acts of promoting the prostitution of the 15–year–old victim provide further support for a finding of a continuous course of sexual conduct under the circumstances of this case.  Defendant's intent that customers engage in sexual intercourse with the victim was demonstrated by evidence that defendant solicited the customers, collected money they paid for the victim's services, and remained present, while hiding in a nearby room, during the acts of prostitution (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 7, 10 [2006];  Penal Law § 20.00;  People v. Johnson, 202 A.D.3d 553, 159 N.Y.S.3d 665 [1st Dept. 2022], lv denied 38 N.Y.3d 910, 2022 WL 2165433 [2022];  compare People v. Tingling, 201 A.D.3d 555, 157 N.Y.S.3d 381 [1st Dept. 2022], lv denied 38 N.Y.3d 908, 2022 WL 1634364 [2022]).

The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The mitigating factors cited by defendant, including his unexceptional efforts at rehabilitation, were adequately taken into consideration by the risk assessment instrument, and were, in any event, outweighed by aggravating factors.