Defendant failed to demonstrate that his age mitigated his particular risk of reoffense (see People v Rodriguez, 145 A.D.3d 489, 490 [1st Dept 2016], lv denied 28 N.Y.3d 916 [2017]). Defendant also failed to show that there was anything exceptional about his response to treatment (see e.g. People v Ortega, 209 A.D.3d 540, 540 [1st Dept 2022], lv denied 39 N.Y.3d 908 [2023]), which resulted in both positive and negative evaluations. In any event, these factors, and the other claimed mitigating factors, were outweighed by the seriousness of defendant's criminal history, which includes three violent sexual assaults.
Defendant failed to demonstrate that his age mitigated his particular risk of reoffense (seePeople 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 also failed to show that there was anything exceptional about his response to treatment (see e. g.People v. Ortega, 209 A.D.3d 540, 540, 175 N.Y.S.3d 212 [1st Dept. 2022], lv denied 39 N.Y.3d 908, 2023 WL 1975895 [2023] ), which resulted in both positive and negative evaluations. In any event, these factors, and the other claimed mitigating factors, were outweighed by the seriousness of defendant's criminal history, which includes three violent sexual assaults.
Under the totality of the circumstances, defendant's rehabilitative efforts and response to sex offender treatment were not so exceptional as to warrant a departure (see e.g. People v Ortega, 209 A.D.3d 540, 540 [1st Dept 2022], lv denied 39 N.Y.3d 908 [2023]).
The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the seriousness of the underlying crime, which consisted of the repeated rape of defendant's 13–year–old stepdaughter, especially when viewed in light of defendant's prior conviction of a sex crime upon a wheelchair-bound teenager. Under the totality of the circumstances, defendant's rehabilitative efforts and response to sex offender treatment were not so exceptional as to warrant a departure (see e. g.People v. Ortega, 209 A.D.3d 540, 540, 175 N.Y.S.3d 212 [1st Dept. 2022], lv denied 39 N.Y.3d 908, 2023 WL 1975895 [2023] ).
The court providently exercised its discretion when it declined to grant a downward departure (seePeople v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant, including his unexceptional response to a treatment program that he did not complete, were adequately taken into account by the risk assessment instrument, or were not shown to reduce defendant's individual risk of reoffense (seePeople v. Ortega, 209 A.D.3d 540, 540, 175 N.Y.S.3d 212 [1st Dept. 2022], lv denied 39 N.Y.3d 908, 2023 WL 1975895 [2023] ). In any event, these mitigating factors were outweighed by aggravating factors, including defendant's criminal history and the seriousness of the underlying crime, in which he sexually exploited a child over a period of years.
The court providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 N.Y.3d 841 [2014]). The mitigating factors cited by defendant, including his unexceptional response to a treatment program that he did not complete, were adequately taken into account by the risk assessment instrument, or were not shown to reduce defendant's individual risk of reoffense (see People v Ortega, 209 A.D.3d 540, 540 [1st Dept 2022], lv denied 39 N.Y.3d 908 [2023]). In any event, these mitigating factors were outweighed by aggravating factors, including defendant's criminal history and the seriousness of the underlying crime, in which he sexually exploited a child over a period of years.
The court providently exercised its discretion when it declined to grant a downward departure (see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]). Defendant failed to show that his response to sex offender treatment was so exemplary or exceptional that a downward departure was warranted (see People v Ortega, 209 A.D.3d 540 [1st Dept 2022]; People v Alcantara, 154 A.D.3d 532 [1st Dept 2017], lv denied 30 N.Y.3d 908 [2018]). The court reviewed defendant's treatment records, and correctly concluded that defendant's participation was not exceptional.