PEOPLE v. LOPEZ (2023)

Order, Supreme Court, New York County (Maxwell Wiley, J.), entered on or about October 4, 2021, 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.

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 were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying crime.  In the underlying incident, defendant brutally assaulted and raped his coworker during an overnight shift.  Defendant's lack of a sex crime history, family support, rehabilitation in prison, and remorse were adequately taken into account by the risk assessment instrument (see e. g. People v. Hernandez, 205 A.D.3d 485, 165 N.Y.S.3d 845 [1st Dept. 2022]).  Defendant's participation in sex offender treatment was not exceptional (see People v. Alcantara, 154 A.D.3d 532, 61 N.Y.S.3d 883 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2018 WL 326534 [2018]).  Defendant's arguments regarding his youthful age at the time of the underlying offense and at the time of a prior offense are unpreserved and unavailing.

We have considered and rejected defendant's remaining arguments, including his alternative request for a remand for further proceedings.