PEOPLE v. LOPEZ (2026)

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Alec D. Miran of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Stacie Nadel of counsel), for respondent.

Order, Supreme Court, New York County (Abraham L. Clott, J.), entered on or about July 7, 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 (see People v. Gillotti, 23 NY3d 841, 861 [2014] ), and we find no basis to substitute our own discretion in this regard.  The mitigating factors cited by defendant, including his participation in sex offender treatment, satisfactory conduct while incarcerated, the intrafamilial nature of the offense, and family support, were adequately taken into account by the risk assessment instrument (see e.g. People v. Bevel 224 AD3d 430, 431 [1st Dept 2024], lv denied 42 NY3d 902 [2024];  People v. Mills, 220 AD3d 548, 548–549 [1st Dept 2023], lv denied 41 NY3d 908 [2024];  People v. Roman, 198 AD3d 425, 426 [1st Dept 2021];  People v. Gomez, 192 AD3d 602, 602 [1st Dept 2021], lv. denied 37 NY3d 910 [2021] ).  Contrary to defendant's assertions, evidence of defendant's participation in sex offender treatment for the six months immediately prior to the hearing, at an “acceptable” level does not demonstrate an exceptional response (see People v. Bonnemere, 201 AD3d 475, 475 [1st Dept 2022] ).  Nor has defendant submitted proof that his age has caused any physical condition that diminished his ability to reoffend (see People v. Rodriguez, 145 AD3d 489, 490 [1st Dept 2016], lv denied 28 NY3d 916 [2017] ).

The court providently denied a downward departure in light of the seriousness of the underlying course of sexual conduct committed against his own daughter over an eight-year period beginning when she was six years old (see id.;  People v. Cabrera, 91 AD3d 479, 480 [1st Dept 2012], lv denied 19 NY3d 801 [2012] ).  To the extent that defendant argues that the court's decision was improvident because it was inconsistent with his STATIC–99R score, this Court has held that the evaluation has “only limited value because it fails to account for the seriousness of an offender's crime or the harm that could be inflicted in the event of reoffense” (People v. Johns, 199 AD3d 529, 530 [1st Dept 2021] ).