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People v Alam, 2024 NY Slip Op 02879 [227 AD3d 576]

May 23, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Russell Alam, Appellant.

Caprice R. Jenerson, Office of the Appellate Defender, New York (Karen Brill of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Andrew H. Chung of counsel), for respondent.

Order, Supreme Court, New York County (Althea Drysdale, J.), entered on or about December 1, 2021, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently exercised its discretion in declining to grant a downward departure ( see People v Gillotti , 23 NY3d 841 , 861 [2014]). Defendant’s family support has been adequately taken into account by the risk assessment instrument ( see People v Sadagheh , 214 AD3d 566 [1st Dept 2023], lv denied 40 NY3d 902 [2023]). Defendant also has not established that his familial support would reduce his particular likelihood of reoffense ( see People v Roman , 198 AD3d 425 , 426 [1st Dept 2021]). Nor has defendant shown that his health condition would “eliminate[ ] any significant risk of reoffense” ( People v Rodriguez , 101 AD3d 630 , 631 [1st Dept 2012], lv denied 21 NY3d 851 [2013]; see also People v Sudderth , 171 AD3d 593 [1st Dept 2019], lv denied 33 NY3d 913 [2019]). Defendant’s underlying offense of inappropriate sexual contact with an 11-year-old child, during a food delivery to the apartment of a friend she was spending the night with, along with his propensity for pornography depicting teenagers and his history, which included sexual misconduct toward female prison staff during a prior incarceration and stalking of a teenage girl, indicates a significant risk of recidivism and danger to the community that is not outweighed by the mitigating factors. Defendant’s contention that his recent improvements in managing his mental illness, which has contributed to the prior and underlying misconduct, would reduce his risk of reoffense is unpersuasive, particularly given his denials of guilt and refusal to participate in sex offender treatment. Concur—Webber, J.P., Gesmer, González, Scarpulla, Shulman, JJ..