PEOPLE v. ROSARIO (2023)

Order, Supreme Court, New York County (Althea E. Drysdale, J.), entered on or about September 29, 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 in granting an upward departure to level two (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Clear and convincing evidence established that defendant committed two prior sex offenses against young female strangers, similar to the underlying offense, which were not accounted for by the risk assessment instrument because those convictions occurred after the conviction in the instant case (see People v. Feliciano, 192 A.D.3d 600, 141 N.Y.S.3d 302 [1st Dept. 2021]).  Defendant's pattern of offending behavior indicated a significant risk of recidivism, which was not outweighed by the mitigating factors he cites, including his efforts at rehabilitation and his progress in sex offender treatment.  Furthermore, defendant was incarcerated up until the time of his SORA hearing and his behavior in custody “is not necessarily indicative of his future conduct while at liberty” (People v. James D., 200 A.D.3d 618, 619, 155 N.Y.S.3d 766 [1st Dept. 2021]).