Opinion
14426 Ind. No. 2606/12 Case No. 2019-5491
10-21-2021
The PEOPLE of the State of New York, Respondent, v. Ishri HARRIPERSAUD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Nicole P. Geoglis of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Nicole P. Geoglis of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kern, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about June 21, 2019, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court correctly assessed 20 points under the risk factor for defendant's relationship (strangers) with the victim, because they only met within 24 hours of the crime (see People v. Barcliff, 165 A.D.3d 533, 534, 84 N.Y.S.3d 472 [1st Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 736488 [2019] ), regardless of any subsequent relationship. The victim's sworn trial testimony, subject to cross-examination, established this fact by clear and convincing evidence, notwithstanding inconsistent, and apparently erroneous, information located in certain documents.
The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). 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] ).