PEOPLE v. KINGSLEY (2023)

Order, Supreme Court, New York County (Ellen N. Biben, J.), entered on or about January 10, 2022, 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.

The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014]).  Defendant failed to show that his visual impairment would prevent him from reoffending.  Defendant was already legally blind when he committed the instant offense and he has not demonstrated that his eyesight has since deteriorated to a point that would preclude reoffense.  Defendant has a long history of sex offenses, which were mostly committed against children, and which resulted in two other level three adjudications.  “Even if defendant was less likely to reoffend due to his [visual impairment and other medical conditions], no departure is warranted because the harm would be great if he did reoffend” (People v. Thomas, 202 AD3d 450, 451 [1st Dept 2022], lv denied 38 NY3d 911 [2022] [internal quotation marks and citation omitted]).

We have considered and rejected defendant's remaining arguments.