| People v Cabrera |
| 2012 NY Slip Op 00113 [91 AD3d 479] |
| Jnury 12, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v OsirisCabrera, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Matthew T. Murphy of counsel), forrespondent.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about June9, 2009, which, after a hearing to redetermine defendant's sex offender risk level pursuant to thestipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]), adjudicated defendanta level two sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Lawart 6-C), unanimously affirmed, without costs.
The court appropriately exercised its discretion in adjudicating defendant a level twooffender and in determining that a downward departure from the presumptive risk level was notwarranted. The People demonstrated by clear and convincing evidence that defendant, a35-year-old man at the time of the crime, lured a special education child into a store, where hethen proceeded to sodomize and rape her as she pleaded with him to stop. Defendant does notdispute that the Board properly assessed him 10 points for "Use of Violence," 25 points for"Sexual Contact with Victim," 20 points for "Age of Victim," 20 points for "RelationshipBetween Offender and Victim," and 10 points for not having accepted responsibility. Defendant'scumulative score of 85 points placed him above the 75-point threshold for a level two offender.There was no basis for a discretionary downward departure, particularly in light of theseriousness of the underlying sex crime (see People v Lineberger, 81 AD3d 439 [2011]).
Defendant insists that he was entitled to a downward departure based on evidence that he hasnot reoffended in 12 years. The court, having considered all the facts and circumstances of thecase, properly rejected this argument in rendering its decision. SORA was intended to address notonly the offender's likelihood of reoffense, but the threat to the public safety (seeCorrection Law § 168-l [5]). Accordingly, even if an offender poses a lesserlikelihood of recidivism, no departure is warranted where "the harm would be great" if he didreoffend (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 2 [2006] [SORA Commentary]). The nature of the offense, and the categories inwhich defendant was assessed points—in particular, the age of the victim, the nature of thesexual contact with the victim, and the use of violence—demonstrate that the harm wouldbe significant if defendant did reoffend. Defendant's conduct is exactly the type of conduct thatthe guidelines deem particularly harmful (see id. ["the child molester" inflicts greaterharm than the offender who "rub[s] himself against women in a crowded subway car"]). The factthat he has not since reoffended does not warrant a downward departure (see People v Perkins, 32 AD3d1241 [2006], lv denied 7 NY3d 718 [2006]). Further, defendant's failure to takeresponsibility for the offense suggests he is a poor prospect for rehabilitation (see SORACommentary, at 15). In his police statement, defendant described the 14-year-old victim as a"street girl" and a "dirty little slut," and maintained that any sexual contact between them wasconsensual. There is no evidence that defendant has since accepted responsibility for his actions.
The court was also correct in rejecting as bases for a downward departure defendant's age (see People v Harrison, 74 AD3d688 [2010], lv denied 15 NY3d 711 [2010]), and his "stable lifestyle." Defendant's"stable lifestyle" was already taken into account by the risk assessment instrument. Further,defendant committed the crime while at work, an indication that employment did not serve as adeterrent for his criminal behavior.
We have considered and rejected defendant's additional arguments. Concur—Andrias,J.P., Saxe, Sweeny, Acosta and Manzanet-Daniels, JJ.