PEOPLE v. CARDONA (2023)

Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about January 30, 2015, which adjudicated defendant a level three predicate sex 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 from the presumptive override to level three for a prior felony sex crime conviction (see People v. Gillotti, 23 NY3d 841 [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, which consisted of the repeated rape of defendant's 13–year–old stepdaughter, especially when viewed in light of defendant's prior conviction of a sex crime upon a wheelchair-bound teenager.  Under the totality of the circumstances, defendant's rehabilitative efforts and response to sex offender treatment were not so exceptional as to warrant a departure (see e. g. People v. Ortega, 209 AD3d 540, 540 [1st Dept 2022], lv denied 39 NY3d 908 [2023]).