The mitigating factors cited by defendant were adequately accounted for by the risk assessment instrument, or were outweighed by the seriousness of the underlying offense and defendant's prior record of similar offenses. Defendant failed to show that his rehabilitation and response to sex offender treatment were so exemplary or exceptional as to warrant a departure (seePeople v. Gomez, 192 A.D.3d 602, 141 N.Y.S.3d 303 [1st Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4188894 [2021] ). The underlying crime, committed at a time when defendant had already been adjudicated a level three sex offender, resulted in defendant's third conviction for sex crimes against young children.
Defendant's lack of prior criminal history, participation in sex offender treatment, record of good behavior while incarcerated, and support network (to the extent relevant) were adequately taken into account by the guidelines. Defendant has not demonstrated that his rehabilitation or response to sex offender treatment were "so exemplary or exceptional" as to warrant a departure ( People v. Gomez, 192 A.D.3d 602, 602, 141 N.Y.S.3d 303 [1st Dept. 2021] ) or that his age (53 at the time of the hearing) renders recidivism unlikely (see e. g.People v. Rivera, 188 A.D.3d 609, 609, 132 N.Y.S.3d 765 [1st Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1218405 [2021] ). Defendant's reliance on the apparently "consensual" nature of the crime (but for the victim's inability to consent by virtue of age) is also unavailing, because of the significant age difference between the 45–year–old defendant and 13–year–old victim (see e.g.People v. Mendoza, 123 A.D.3d 417, 417, 996 N.Y.S.2d 282 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 651927 [2015] ).
Defendant's lack of prior criminal history, participation in sex offender treatment, record of good behavior while incarcerated, and support network (to the extent relevant) were adequately taken into account by the guidelines. Defendant has not demonstrated that his rehabilitation or response to sex offender treatment were "so exemplary or exceptional" as to warrant a departure (People v Gomez, 192 A.D.3d 602, 602 [1st Dept 2021]) or that his age (53 at the time of the hearing) renders recidivism unlikely (see e.g. People v Rivera, 188 A.D.3d 609, 609 [1st Dept 2020], lv denied 36 N.Y.3d 910 [2021]). Defendant's reliance on the apparently "consensual" nature of the crime (but for the victim's inability to consent by virtue of age) is also unavailing, because of the significant age difference between the 45-year-old defendant and 13-year-old victim (see e.g. People v Mendoza, 123 A.D.3d 417, 417 [1st Dept 2014], lv denied 24 N.Y.3d 915 [2015]).
Defendant's lack of prior criminal history, participation in sex offender treatment, record of good behavior while incarcerated, and support network (to the extent relevant) were adequately taken into account by the guidelines. Defendant has not demonstrated that his rehabilitation or response to sex offender treatment were "so exemplary or exceptional" as to warrant a departure (People v Gomez, 192 A.D.3d 602, 602 [1st Dept 2021]) or that his age (53 at the time of the hearing) renders recidivism unlikely (see e.g. People v Rivera, 188 A.D.3d 609, 609 [1st Dept 2020], lv denied 36 N.Y.3d 910 [2021]). Defendant's reliance on the apparently "consensual" nature of the crime (but for the victim's inability to consent by virtue of age) is also unavailing, because of the significant age difference between the 45-year-old defendant and 13-year-old victim (see e.g. People v Mendoza, 123 A.D.3d 417, 417 [1st Dept 2014], lv denied 24 N.Y.3d 915 [2015]).