Opinion
No. 535086
09-26-2024
The People of the State of New York, Respondent, v. Robert R. Scott, Appellant.
Stephen W. Herrick, Public Defender, Albany (James A. Bartosik Jr. of counsel), for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Calendar Date: September 9, 2024
Stephen W. Herrick, Public Defender, Albany (James A. Bartosik Jr. of counsel), for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Before: Clark, J.P., Pritzker, Ceresia, Fisher and Mackey, JJ.
Pritzker, J.
Appeal from an order of the Supreme Court (Peter A. Lynch, J.), entered October 4, 2021 in Albany County, which classified defendant as a level two sex offender pursuant to the Sex Offender Registration Act.
In November 2018, defendant pleaded guilty to a superior court information charging him with attempted sexual abuse in the first degree, and he was sentenced to four years in prison, to be followed by 15 years of postrelease supervision. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a case summary and risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) that assessed a total of 95 points, presumptively classifying defendant as a risk level two sex offender, with which the People agreed. Following a hearing, Supreme Court classified defendant as a risk level two sex offender with a sexually violent offender designation and denied defendant's request for a downward departure, which was primarily predicated upon his status as a veteran of the U.S. Navy who was honorably medically discharged and his successful completion of various treatment programs. Defendant appeals.
Initially, we note that because defendant raised no objection at the SORA hearing to the 75 points scored for risk factors 2, 6, 9 and 11, any challenge to the assessment of points under these risk factors is unpreserved for appellate review (see People v DeDona, 102 A.D.3d 58, 63 [2d Dept 2012]). Further, defendant's contention that Supreme Court erred in assessing points under risk factor 4 "is academic because, even without the 20 points at issue, defendant would still qualify as a level two risk" (People v Ellis, 204 A.D.3d 1388, 1390 [4th Dept 2022] [internal quotation marks, brackets and citation omitted]; see People v Richardson, 209 A.D.3d 1068, 1070 [3d Dept 2022], lv denied 39 N.Y.3d 908 [2023]; cf. People v Huether, 205 A.D.3d 1233, 1234 [3d Dept 2022], lv denied 39 N.Y.3d 901 [2022]).
Supreme Court also providently exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 N.Y.3d 841, 861-863 [2014]). With regard to the mitigating factors relied upon by defendant, he "failed to show how his prior military service... tended to lower his risk of reoffense or danger to the community" (People v Pace, 188 A.D.3d 732, 733 [3d Dept 2020], lv denied 36 N.Y.3d 907 [2021]; see People v Oyola, 217 A.D.3d 791, 792 [2d Dept 2023], lv denied 40 N.Y.3d 907 [2023]). Further, his completion of various treatments were adequately taken into account by the risk assessment instrument (see People v Sadagheh, 214 A.D.3d 566, 566 [1st Dept 2023], lv denied 40 N.Y.3d 902 [2023]; People v Pace, 188 A.D.3d at 734; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15-17 [2006]). In view of the foregoing, defendant failed to prove by a preponderance of the evidence the existence of mitigating factors that were not adequately taken into consideration by the guidelines and, thus, we are satisfied that Supreme Court did not abuse its discretion in denying the requested downward departure and in classifying defendant as a risk level two sex offender (see People v Gillotti, 23 N.Y.3d at 861; People v Pace, 188 A.D.3d at 733). To the extent that we have not addressed any of defendant's remaining claims, they have been considered and found to be without merit.
Clark, J.P., Ceresia, Fisher and Mackey, JJ., concur.
ORDERED that the order is affirmed, without costs.