Opinion
Ind No. 5170/14 No. 2350 No. 2021-04508
05-23-2024
The People of the State of New York, Respondent, v. Russell Alam, Defendant-Appellant.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Karen Brill of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Andrew H. Chung of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Karen Brill of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Andrew H. Chung of counsel), for respondent.
Before: Webber, J.P., Gesmer, González, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Althea Drysdale, J.), entered on or about December 1, 2021, 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 in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861 [2014]). Defendant's family support has been adequately taken into account by the risk assessment instrument (see People v. Sadagheh, 214 A.D.3d 566 [1st Dept 2023], lv denied 40 N.Y.3d 902 [2023]). Defendant also has not established that his familial support would reduce his particular likelihood of reoffense (see People v. Roman, 198 A.D.3d 425, 426 [1st Dept 2021]). Nor has defendant shown that his health condition would "eliminate[] any significant risk of reoffense" (People v. Rodriguez, 101 A.D.3d 630, 631 [1st Dept 2012], lv denied 21 N.Y.3d 851 [2013]; see also People v. Sudderth, 171 A.D.3d 593 [1st Dept 2019], lv denied 33 N.Y.3d 913 [2019]). Defendant's underlying offense of inappropriate sexual contact with an 11-year-old child, during a food delivery to the apartment of a friend she was spending the night with, along with his propensity for pornography depicting teenagers and his history, which included sexual misconduct toward female prison staff during a prior incarceration and stalking of a teenage girl, indicates a significant risk of recidivism and danger to the community that is not outweighed by the mitigating factors. Defendant's contention that his recent improvements in managing his mental illness, which has contributed to the prior and underlying misconduct, would reduce his risk of reoffense is unpersuasive, particularly given his denials of guilt and refusal to participate in sex offender treatment. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.