Opinion
2020–07355
02-08-2023
PEOPLE of State of New York, respondent, v. Duane BARRY, appellant.
Laurette D. Mulry, Riverhead, NY (Genevieve M. Cahill of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Pilar M. O'Rourke and Lauren Tan of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Genevieve M. Cahill of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Pilar M. O'Rourke and Lauren Tan of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated September 3, 2020, 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.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 125 points on the risk assessment instrument, and applied an automatic override based on the defendant's prior felony sex conviction, rendering the defendant a presumptive level three sex offender (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006] [hereinafter Guidelines]). The court denied the defendant's request for a downward departure and designated him a level three sex offender. The defendant appeals.
"In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence" ( People v. Levy, 192 A.D.3d 928, 929, 140 N.Y.S.3d 721 ; see Correction Law § 168–n[3] ; People v. Guadeloupe, 173 A.D.3d 910, 911, 100 N.Y.S.3d 384 ). " ‘In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay’ " ( People v. Vasquez, 189 A.D.3d 1480, 1481, 134 N.Y.S.3d 765, quoting People v. Luna, 187 A.D.3d 805, 806, 130 N.Y.S.3d 323 ).
The Supreme Court correctly determined that the People met their burden of proving by clear and convincing evidence the facts supporting the defendant's designation as a level three sex offender (see Correction Law § 168–n[3] ). Contrary to the defendant's contention, the court properly assessed 30 points under risk factor 5, as the record demonstrates that the defendant possessed pornographic images displaying children 10 years old or younger (see People v. Lombardi, 205 A.D.3d 743, 744, 165 N.Y.S.3d 709 ; People v. Glosque, 201 A.D.3d 823, 824, 157 N.Y.S.3d 392 ; People v. Kopstein, 186 A.D.3d 757, 758, 126 N.Y.S.3d 920 ; People v. Butler, 157 A.D.3d 727, 69 N.Y.S.3d 66 ).
The defendant's contention that the Supreme Court improperly assessed 15 points under risk factor 11 is unpreserved for appellate review (see CPLR 4017, 5501 ; People v. Gillotti, 23 N.Y.3d 841, 854, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Madison, 153 A.D.3d 737, 59 N.Y.S.3d 755 ). In any event, the contention is without merit, as the assessment was proper based on the defendant's admissions (see People v. Vasquez, 197 A.D.3d 1185, 1186, 151 N.Y.S.3d 359 ; People v. Perry, 165 A.D.3d 990, 991, 84 N.Y.S.3d 567 ; People v. Lowery, 140 A.D.3d 1141, 1142, 35 N.Y.S.3d 684 ). Accordingly, the court properly assessed the defendant 125 points on the risk assessment instrument, which alone would render the defendant a presumptive level three offender.
Furthermore, "[t]he 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 People v. Long, 129 A.D.3d 687, 687, 10 N.Y.S.3d 336 ). "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] ). "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 ). The application of an override, however, merely renders the defendant a presumptive level three offender, and a court may, in its discretion, depart from the presumptive risk level where the circumstances warrant such a departure (see People v. Abdullah, 210 A.D.3d 704, 705, 178 N.Y.S.3d 94 ; People v. Johnson, 135 A.D.3d at 721, 22 N.Y.S.3d 238 ).
As the defendant concedes, the People sustained their burden of proving, by clear and convincing evidence, the applicability of the override based upon the defendant's prior sex felony conviction (see Guidelines at 3; People v. Horne, 61 A.D.3d 945, 876 N.Y.S.2d 898 ). Thus, the defendant was presumptively a level three offender.
Contrary to the defendant's contention, the Supreme Court did not err in denying his request for a downward departure from the presumptive risk level (see People v. Johnson, 11 N.Y.3d 416, 422, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; People v. Abdullah, 210 A.D.3d 704, 178 N.Y.S.3d 94 ; People v. Wolm, 209 A.D.3d 682, 684, 175 N.Y.S.3d 332 ; People v. Sofo, 168 A.D.3d 891, 892, 90 N.Y.S.3d 290 ; see also People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ). 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 at 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. Felton, 175 A.D.3d 734, 735, 105 N.Y.S.3d 301 ; People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351 ; People v. Champagne, 140 A.D.3d at 720, 31 N.Y.S.3d 218 ).
Here, the defendant failed to establish by a preponderance of the evidence that a downward departure was warranted. While a " ‘defendant's response to [sex offender] treatment may qualify as a ground for a downward departure where the response is exceptional’ " ( People v. Del–Carmen, 186 A.D.3d 878, 879, 128 N.Y.S.3d 608, quoting People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561 ), the defendant failed to establish that his response to such treatment was exceptional (see People v. Mitchell, 196 A.D.3d 516, 518, 146 N.Y.S.3d 851 ; People v. Del–Carmen, 186 A.D.3d at 879, 128 N.Y.S.3d 608 ; People v. Robinson, 179 A.D.3d 1104, 1105, 114 N.Y.S.3d 676 ; People v. Varvaro, 171 A.D.3d 958, 960, 95 N.Y.S.3d 593 ; People v. Riverso, 96 A.D.3d 1533, 1534, 947 N.Y.S.2d 250 ).
Furthermore, "[a]lthough in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community, a downward departure is not warranted under the circumstances here" ( People v. Smith, 187 A.D.3d 1228, 1229, 131 N.Y.S.3d 572 ), where the defendant was found in possession of numerous images of different child victims while on probation for child pornography, and acknowledged his sexual attraction to underage children (see People v. Sofo, 168 A.D.3d at 892, 90 N.Y.S.3d 290 ). The defendant also failed to assert how the application of the automatic override provision to his noncontact sexual offense has produced an "anomalous" or unintended result ( People v. Johnson, 11 N.Y.3d at 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; see People v. Champagne, 140 A.D.3d at 720, 31 N.Y.S.3d 218 ). Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
BRATHWAITE NELSON, J.P., RIVERA, MALTESE and GENOVESI, JJ., concur.