PEOPLE v. ALLEN (2023)

Orders, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about April 5, 2021, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court properly 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]).  Defendant failed to demonstrate that his age mitigated his particular risk of reoffense (see People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017]).  Defendant also failed to show that there was anything exceptional about his response to treatment (see e. g. People v. Ortega, 209 A.D.3d 540, 540, 175 N.Y.S.3d 212 [1st Dept. 2022], lv denied 39 N.Y.3d 908, 2023 WL 1975895 [2023]), which resulted in both positive and negative evaluations.  In any event, these factors, and the other claimed mitigating factors, were outweighed by the seriousness of defendant's criminal history, which includes three violent sexual assaults.  We have considered and rejected defendant's remaining arguments.

Motion to strike portions of pages 14, 15, 25, and 26 of the People's brief granted insofar as they refer to facts other than the crime of conviction and age of the victim set forth in the presentence report from defendant's 1978 conviction.