PEOPLE v. PARRA (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about November 1, 2022, which adjudicated defendant a level three sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court providently exercised its discretion in declining 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]).  The court applied an automatic override for a prior felony sex crime conviction, which defendant does not dispute was properly applied.  Although the conviction that formed the basis of the override occurred years ago, it was not too remote in time since defendant spent 21 of the 22 years between that offense and the instant offense in prison or under supervision, having committed additional crimes during that time (see People v. Correa, 127 A.D.3d 610, 610, 8 N.Y.S.3d 287 [1st Dept. 2015]).

The restrictions on defendant's housing based on his risk level three adjudication does not qualify as a mitigating factor because it has no bearing on his risk of reoffense or the threat he poses to public safety (see 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]).  Defendant's family support, community support, and his employment prospects were taken into account by the risk assessment instrument (see 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]).  Moreover, he failed to demonstrate that his support network and employment prospects decreased his particular likelihood of reoffense (see id.).

Defendant failed to demonstrate that his age impacted his ability to reoffend, particularly given that he committed the underlying crime five years earlier, at the age of 46 (see People v. Galarza, 220 A.D.3d 449, 449, 197 N.Y.S.3d 193 [1st Dept. 2023], lv denied 41 N.Y.3d 903, 2024 WL 720113 [2024]).  Accordingly, his reliance on studies indicating a decline in the rate of recidivism for sex offenders after the age of 40 is misplaced.  Although his federal supervision may be a mitigating factor not adequately taken into account by the risk assessment instrument, he failed to demonstrate that this was a significant mitigating factor warranting a downward departure, particularly because he committed the underlying crime while he was under federal supervision (see People v. Lewis, 143 A.D.3d 604, 605, 40 N.Y.S.3d 374 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628759 [2017]).  Furthermore, any mitigating factors cited were outweighed by the seriousness of the underlying offense and his pattern of recidivism.