People v Seales, 2023 NY Slip Op 05202 [220 AD3d 494]

October 12, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Kevan Seales, Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Dany Greene of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Elizabeth T. Schmidt of counsel), for respondent.

Order, Supreme Court, New York County (Ellen N. Biben, J.), entered on or about November 26, 2019, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently exercised its discretion when it declined to grant defendant’s request for a downward departure to risk level one ( People v Gillotti , 23 NY3d 841 , 861 [2014]). Defendant’s prison record was not exceptional. During defendant’s two years in prison, he accrued six infractions, including two infractions for violent conduct ( see People v Holmes , 195 AD3d 528 [1st Dept 2021], lv denied 37 NY3d 912 [2021]; People v Padro , 159 AD3d 651 , 652 [1st Dept 2018]). These infractions were neither trivial nor remote ( see People v Chabrier , 38 AD3d 355 [1st Dept 2007], lv denied 9 NY3d 801 [2007]). Defendant’s completion of alcohol abuse and sex offender treatment was not in and of itself exceptional ( People v Tugwell , 210 AD3d 507 , 507-508 [1st Dept 2022], lv denied 39 NY3d 911 [2023]; People v Alcantara , 154 AD3d 532 [1st Dept 2017], lv denied 30 NY3d 908 [2018]). Additionally, risk factor 12 of the RAI guidelines, for which defendant received zero points, accounted for defendant’s statement of remorse, his acceptance of responsibility, and his participation in sex offender treatment ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15-16 [2006]). Concur—Webber, J.P., Kern, Singh, Scarpulla, Rosado, JJ..