Opinion
2018–11818
01-11-2023
PEOPLE of State of New York, respondent, v. Alfred BALCERAK, appellant.
N. Scott Banks, Hempstead, NY (Tammy Feman and Argun M. Ulgen of counsel), for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Monica M.C. Leiter, Autumn S. Hughes, and Rebecca L. Abensur of counsel), for respondent.
N. Scott Banks, Hempstead, NY (Tammy Feman and Argun M. Ulgen of counsel), for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Monica M.C. Leiter, Autumn S. Hughes, and Rebecca L. Abensur of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), dated July 24, 2018, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C. ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of forcible touching. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the defendant was assessed 65 points under the risk assessment instrument, presumptively placing him within the range for a level one designation. However, based upon the defendant's prior conviction of a felony sex crime, the Board of Examiners of Sex Offenders recommended that the defendant be classified as a level three sex offender pursuant to an automatic override (see People v. Rhinehart, 210 A.D.3d 706, 178 N.Y.S.3d 124 ; People v. Jones, 196 A.D.3d 515, 147 N.Y.S.3d 422 ). The Supreme Court designated the defendant a level three sex offender. The defendant appeals.
"The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three" ( People v. Lobello, 123 A.D.3d 993, 994, 999 N.Y.S.2d 179 ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]; People v. Barr, 205 A.D.3d 741, 742, 166 N.Y.S.3d 682 ). "The first override, which is relevant to this appeal, is for a prior felony conviction of a sex crime" ( People v. McCurdy, 198 A.D.3d 991, 992, 157 N.Y.S.3d 54 ; see Guidelines at 3, 19). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" ( People v. Lobello, 123 A.D.3d at 994, 999 N.Y.S.2d 179 ; see Correction Law § 168–n[3] ; People v. Abdullah, 210 A.D.3d 704, 178 N.Y.S.3d 94 ). "Once the People have sustained this burden, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic’ " ( People v. Johnson, 135 A.D.3d 720, 720–721, 22 N.Y.S.3d 238, quoting People v. Gordon, 133 A.D.3d 835, 836, 20 N.Y.S.3d 165 ).
Here, the People sustained their burden of proving, by clear and convincing evidence, the applicability of the override based on the defendant's prior conviction of sexual abuse in the first degree (see People v. Wolm, 209 A.D.3d 682, 683, 175 N.Y.S.3d 332 ; see also People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). In light of our determination that an override was established, we need not reach the defendant's challenge to the assessment of points under certain specified risk factors (see People v. Wolm, 209 A.D.3d at 683, 175 N.Y.S.3d 332 ; People v. Barr, 205 A.D.3d at 742, 166 N.Y.S.3d 682 ; People v. Berry, 138 A.D.3d 945, 946, 28 N.Y.S.3d 631 ).
At the SORA hearing, the defendant sought a downward departure from the presumptive risk level. The Supreme Court failed to adequately set forth findings of fact and conclusions of law with respect to the defendant's request for a downward departure from the presumptive risk level (see Correction Law § 168–n[3] ). However, remittal to the Supreme Court is not required since the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v. Howard, 190 A.D.3d 773, 774, 135 N.Y.S.3d 869 ; People v. Rodriguez, 170 A.D.3d 902, 903, 94 N.Y.S.3d 353 ).
A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" ( People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also Guidelines at 4). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
Here, the alleged mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
RIVERA, J.P., MILLER, CHRISTOPHER and TAYLOR, JJ., concur.