Opinion
02-06-2024
The PEOPLE of the State of New York, Respondent, v. Jeffrey BEVEL, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Ashley A, Baxter of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Rachel Bond of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Ashley A, Baxter of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Rachel Bond of counsel), for respondent.
Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about September 19, 2019, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
[1] The court providently exercised its discretion in declining a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Defendant’s lack of a disciplinary record, completion of sex offender and substance abuse treatment programs, participation in vocational training, family support, and expressed remorse have been adequately taken into account by the risk assessment instrument (see People v. Williams, 216 A.D.3d 438, 439, 189 N.Y.S.3d 107 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6153400 [2023]; People v. Lopez, 215 A.D.3d 575, 187 N.Y.S.3d 614 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6152889 [2023]; People v. Wright, 208 A.D.3d 1112, 175 N.Y.S.3d 57 [1st Dept. 2022], lv denied 39 N.Y.3d 907, 2023 WL 1827744 [2023]). Furthermore, defendant failed to establish that his response to sex offender treatment was so exceptional as to warrant a downward departure (see 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]), or how his vocational training or family support reduced his particular likelihood of reoffense or danger to the community (Wright, 208 A.D.3d at 1112, 175 N.Y.S.3d 57; People v. Roman, 198 A.D.3d 425, 426, 152 N.Y.S.3d 296 [1st Dept. 2021]).
[2] The impact that defendant’s risk level three adjudication had on his housing opportunities does not qualify as a mitigating circumstance, as it has no bearing on his risk of reoffense or the threat he poses to public safety (see People v. McFarland, 120 A.D.3d 1121, 1122, 992 N.Y.S.2d 414 [1st Dept. 2014], lv denied 24 N.Y.3d 1053, 999 N.Y.S.2d 360, 24 N.E.3d 597 [2014]). Defendant’s contention that a risk level two determination is more appropriate because the additional restrictions under a level three designation do not increase public safety and his conduct was not as serious as that generally warranting a level three designation ignores his criminal history. Such criminal history includes prior convictions of attempted sexual abuse in the first degree and forcible touching, both committed against female strangers, and the former of which culminated in a risk level two sexually violent offender adjudication and provided the basis for an automatic override in this ease (see People v. Corian, 77 A.D.3d 590, 590, 909 N.Y.S.2d 360 [1st Dept. 2010], lv denied 16 N.Y.3d 705, 2011 WL 536606 [2011]; People v. Judd, 29 A.D.3d 431, 814 N.Y.S.2d 165 [1st Dept. 2006], lv denied 7 N.Y.3d 709, 822 N.Y.S.2d 483, 855 N.E.2d 799 [2006]).