Crimes - Sex Offenders - Sex Offender Registration Act - Continuing Course of Sexual Conduct

Crimes - Sex Offenders - Sex Offender Registration Act - Presumptive Override of Offender Level due to Prior Sex Crime Conviction

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 7, 2020, which adjudicated defendant a level three sexually violent and predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

As the People concede, the assessment of 20 points under factor 4 was improper because it was not supported by clear and convincing evidence establishing that the multiple occasions of sexual misconduct alleged occurred at sufficiently separate intervals to qualify as a continuing course of sexual conduct (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]; see also People v Tolbert, 223 AD3d 534, 535 [1st Dept 2024]). The remaining 100 total points assessed under the risk assessment instrument were not challenged by defendant, which would make him a presumptive level two offender. However, the court properly applied a presumptive override due to defendant's prior sex crime conviction (see People v Lebron, 143 AD3d 535, 535 [1st Dept 2016], lv denied 28 NY3d 912 [2017]), and providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Lebron, 143 AD3d at 536). The mitigating factors presented by defendant were adequately considered by the risk assessment instrument or were not shown to reduce defendant's likelihood of reoffense (see People v Sadagheh, 214 AD3d 566 [1st Dept 2023], lv denied 40 NY3d 902 [2023]). In any event, any mitigating factors were outweighed by the seriousness of the underlying conduct, and the danger that a reoffense by defendant would cause a high degree of harm (see People v Cabrera, 91 AD3d 479, 480 [1st Dept 2012], lv denied 19 NY3d 801 [2012]). Concur—Manzanet-Daniels, J.P., Moulton, González, Rosado, Chan, JJ.