PEOPLE v. MONTESQUIEU (2023)

Order, Supreme Court, New York County (Ellen N. Biben, J.), entered on July 30, 2020, 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 generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  Defendant, who was 18 years old at the time of the underlying offense, primarily cites his age as a mitigating factor.  However, defendant did not demonstrate that he posed a lower risk of reoffense due to his age (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];  see also People v. Bulina, 205 A.D.3d 526, 166 N.Y.S.3d 525 [1st Dept. 2022], lv denied 38 N.Y.3d 914, 2022 WL 4240815 [2022]), and his principal argument is a general criticism of the way the Guidelines treat youthfulness.  The other mitigating factors defendant cites were adequately taken into account by the risk assessment instrument, and all the alleged mitigating factors are outweighed by the seriousness of the underlying violent sexual attack.

The court was required to designate defendant a sexually violent offender because he was convicted as an adult of an enumerated offense (see People v. Talluto, 39 N.Y.3d 306, 315, 186 N.Y.S.3d 78, 206 N.E.3d 1221 [2022]).  Defendant's constitutional challenges to this mandatory designation are unavailing and have been repeatedly rejected by this Court (see e.g. Bulina, 205 A.D.3d at 527, 166 N.Y.S.3d 525;  see also People v. Knox, 12 N.Y.3d 60, 68–69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009]).