PEOPLE v. CALDERON (2026)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about August 30, 2023, 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.

Defendant has presented no basis warranting the exercise of this Court's discretion to grant him a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument (see e.g. People v. Perez, 226 A.D.3d 487, 487, 208 N.Y.S.3d 179 [1st Dept 2024], lv denied 42 N.Y.3d 905, 2024 WL 4229156 [2024];  People v. Bevel, 224 A.D.3d 430, 431, 204 N.Y.S.3d 103 [1st Dept 2024], lv denied 42 N.Y.3d 902, 2024 WL 4125689 [2024];  People v. Mills, 220 A.D.3d 548, 548–549, 199 N.Y.S.3d 22 [1st Dept 2023], lv denied 41 N.Y.3d 908, 2024 WL 2278702 [2024] ).  Although an exceptional response to sex offender treatment may qualify as a mitigating factor not already accounted for by the instrument, the evidence of defendant's positive participation in sex offender treatment shows, at best adequate and consistent participation that met the program's minimum requirements (see People v. Santos, 242 A.D.3d 528, 528, 241 N.Y.S.3d 54 [1st Dept 2025] ).

In any event, a downward departure is unwarranted as the alleged mitigating factors were outweighed by the seriousness of the underlying course of sexual conduct committed against a young child (see People v. Seda, 242 A.D.3d 517, 518, 241 N.Y.S.3d 43 [1st Dept 2025], lv denied 45 N.Y.3d 902, 2026 WL 770959 [2026] ).