Opinion
2022–02022
11-23-2022
PEOPLE of State of New York, respondent, v. Herman BAUTISTA, appellant.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel; Robert Joannou on the brief), for respondent.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel; Robert Joannou on the brief), 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 County Court, Suffolk County (Karen M. Wilutis, J.), dated March 10, 2022, 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 criminal sexual act in the first degree, sexual abuse in the first degree, and endangering the welfare of a child. In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the County Court assessed the defendant 135 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level three sex offender. On appeal, the defendant challenges the assessment of 15 points under risk factor 12 (acceptance of responsibility) and 20 points under risk factor 13 (unsatisfactory and inappropriate sexual conduct while confined/supervised), as well as the denial of his application for a downward departure.
"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, citing 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 [internal quotation marks omitted]).
The County 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's assessment of points under risk factor 12 was proper as the People presented clear and convincing evidence of the defendant's failure to accept responsibility for his actions and his removal from a sex offender treatment program (see People v. Zachary 188 A.D.3d 935, 936, 132 N.Y.S.3d 334 ; People v. Ramos, 147 A.D.3d 1090, 46 N.Y.S.3d 906 ; People v. Grigg, 112 A.D.3d 802, 977 N.Y.S.2d 84 ; People v. Ologbonjaiye, 109 A.D.3d 804, 971 N.Y.S.2d 126 ). Similarly, the defendant was properly assessed points under risk factor 13 based on his receipt of 8 tier III disciplinary sanctions and 20 tier II violations, one of which was for masturbating in open view (see People v. Harrington, 171 A.D.3d 956, 957, 95 N.Y.S.3d 861 ; People v. Hawthorne, 158 A.D.3d 651, 70 N.Y.S.3d 537 ; People v. Littles, 155 A.D.3d 979, 63 N.Y.S.3d 901 ; People v. Lawson, 90 A.D.3d 1006, 1007, 935 N.Y.S.2d 650 ).
Moreover, the County Court properly denied the defendant's application for a downward departure from his presumptive risk level (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483 ). 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). "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" ( People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Brocato, 188 A.D.3d 728, 728–729, 131 N.Y.S.3d 645 ; People v. Felton, 175 A.D.3d 734, 735, 105 N.Y.S.3d 301 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
Here, the defendant failed to demonstrate how his resorting to violence due to being victimized in prison shows a lower likelihood of reoffense to thus constitute a mitigating factor that would warrant a downward departure (see People v. Gillotti, 23 N.Y.3d at 857, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt, 89 A.D.3d at 112, 121, 931 N.Y.S.2d 85 ).
Accordingly, the County Court properly denied the defendant's application for a downward departure and designated him a level three sex offender.
BRATHWAITE NELSON, J.P., RIVERA, MALTESE and GENOVESI, JJ., concur.