Opinion
16460 Ind. No. 3921/12 Case No. 2021–00199
10-18-2022
The PEOPLE of the State of New York, Appellant, v. Garis ORTEGA, Defendant–Respondent.
Alvin L. Bragg, Jr., District Attorney, New York (Victoria Muth of counsel), for appellant. Robert S. Dean, Center for Appellate Litigation, New York (John L. Palmer of counsel), for respondent.
Alvin L. Bragg, Jr., District Attorney, New York (Victoria Muth of counsel), for appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John L. Palmer of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Oing, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about December 15, 2020, which adjudicated defendant a level one sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously modified, on the law, to the extent of denying defendant's application for a downward departure and reinstating his original classification as level two, and otherwise affirmed, without costs.
While a court has discretion to grant a modification of a presumptive sex offender classification, the court abused, or at least improvidently exercised, its discretion here (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The court placed undue emphasis on defendant's response to sex offender treatment, which was not so exceptional that a downward departure was warranted (see e. g. People v. Alcantara, 154 A.D.3d 532, 61 N.Y.S.3d 883 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2018 WL 326534 [2018] ), and cannot be accurately described as "exceptional" at all (see People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 [2d Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3151966 [2016] ).
Defendant also failed to present any evidence that his social support system and age (40 years) decreased his particular likelihood of reoffense (see People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017] ). Defendant's successful completion of substance abuse treatment and abstinence while incarcerated had minimal bearing on his risk of reoffense once he was released (see People v. Sepulveda, 187 A.D.3d 448, 129 N.Y.S.3d 787 [1st Dept. 2020], lv denied 36 N.Y.3d 904, 2021 WL 56566 [2021] ). Defendant's minimal prison disciplinary record was sufficiently taken into account by the risk assessment instrument (see People v. Watson, 112 A.D.3d 501, 503, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.2d 863, 2014 WL 702166 [2014]).
The underlying crime was a violent rape. Defendant has two prior felony convictions (one being a violent felony), as well as three parole violations, based on new arrests, and his point score was 100. The factors cited by the court did not warrant a downward departure from level two.