People v Malloy, 2023 NY Slip Op 00495 [213 AD3d 417]

February 2, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Christopher Malloy, Appellant.

Justine Luongo, The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Rachel Bond of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on August 12, 2014, which, after a hearing, 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 when it declined to grant a downward departure ( see generally People v Gillotti , 23 NY3d 841 , 861 [2014]). Defendant failed to show that his response to sex offender treatment was so exemplary or exceptional that a downward departure was warranted ( see People v Ortega , 209 AD3d 540 [1st Dept 2022]; People v Alcantara , 154 AD3d 532 [1st Dept 2017], lv denied 30 NY3d 908 [2018]). The court reviewed defendant’s treatment records, and correctly concluded that defendant’s participation was not exceptional. The record does not support defendant’s assertion that the court relied on improper considerations in making its determination. Moreover, on this appeal this Court is not bound by the hearing court’s analysis ( see People v Larkin , 66 AD3d 592 , 593 [1st Dept 2009], lv denied 14 NY3d 704 [2010]). The particular mitigating factors identified by defendant failed to outweigh the seriousness of his offense against a young child. Concur—Manzanet-Daniels, J.P., González, Scarpulla, Shulman, Pitt-Burke, JJ..