PEOPLE v. LEBRON (2026)

Order, Supreme Court, New York County (Kathryn S. Paek, J.), entered on or about September 26, 2025, 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 when it declined to grant a downward departure, and there is no basis for this Court to exercise its independent discretion to adjudicate defendant a level one offender (see People v Gillotti, 23 NY3d 841, 861 [2014] ).  The mitigating factors defendant relies on were either adequately accounted for by the risk assessment instrument or were outweighed by the heinous nature of defendant's crime against a child (see e.g. People v Carvente, 233 AD3d 491, 491 [1st Dept 2024], lv denied 43 NY3d 907 [2025];  People v Leiva, 215 AD3d 476, 476 [1st Dept 2023], lv denied 40 NY3d 904 [2023];  People v Tugwell, 210 AD3d 507, 507 [1st Dept 2022], lv denied 39 NY3d 911 [2023] ).  Even where there are factors indicating a decreased chance that a defendant would reoffend, such factors would be outweighed by the seriousness of defendant's offense against a child, given the “magnitude of harm” that would result from a re-offense (People v Etheridge, 149 AD3d 446, 447 [1st Dept 2017], lv denied 29 NY3d 912 [2017];  see also People v Saxton, 231 AD3d 557, 557 [1st Dept 2024], lv denied 42 NY3d 913 [2025];  People v Cabrera, 91 AD3d 479, 479–480 [1st Dept 2012], lv denied 19 NY3d 801 [2012] ).

The court correctly found that the evidence presented by defendant did not establish the type of “exceptional” rehabilitation that has been found to support a downward departure (see People v Ferdinand, 237 AD3d 613, 614 [1st Dept 2025], lv denied 44 NY3d 904 [2025];  cf.  People v Williams, 148 AD3d 540, 541–542 [1st Dept 2017] ).

Defendant's score near the bottom of the range for the level two designation, without more, is insufficient to warrant a downward departure in the type of circumstances here (see People v Hernandez, 117 AD3d 524 [1st Dept 2014], lv denied 24 NY3d 902 [2014] ).  Further, the court properly declined to make a finding that defendant is less likely to reoffend based on his age, especially given the lack of expert testimony that might have allowed for such a finding in the circumstances here (see People v Jackson, 246 AD3d 444, 445 [1st Dept 2026];  People v Rodriguez, 145 AD3d 489, 490 [1st Dept 2016], lv denied 28 NY3d 916 [2017] ).  Finally, while the SORA court credited defendant's evidence supporting the contention that an individual who has committed only an intrafamilial childfemale offense has a lower likelihood of recidivism than one who has committed intrafamilial child-male offenses or stranger offenses, this Court has rejected the contention that such intrafamilial offenders warrant downward departures because they are less likely to reoffend (see People v Alvarado, 242 AD3d 423, 423 [1st Dept 2025], lv denied 45 NY3d 903 [2026];  People v Santiago, 236 AD3d 575, 576 [1st Dept 2025], lv denied 44 NY3d 907 [2025] ).