Opinion
2020–05217
04-21-2021
Proto, Sachs & Brown, LLP, White Plains, N.Y. (Jennifer Spencer of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, N.Y. (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
Proto, Sachs & Brown, LLP, White Plains, N.Y. (Jennifer Spencer of counsel), for appellant.
Miriam E. Rocah, District Attorney, White Plains, N.Y. (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated February 26, 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.
"A court determining a defendant's risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines’ " ( People v. Warren, 152 A.D.3d 551, 551, 54 N.Y.S.3d 871, quoting People v. Lathan, 129 A.D.3d 686, 687, 8 N.Y.S.3d 921 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). Only if this showing is made does the SORA court have the "discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender's risk of reoffense and danger to the community" ( People v. Wyatt, 89 A.D.3d at 128, 931 N.Y.S.2d 85 ; see People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Kohout, 145 A.D.3d 922, 44 N.Y.S.3d 470 ).
Contrary to the defendant's contention, he failed to sustain his burden of proof in support of his application for a downward departure. Although an offender's response to treatment if exceptional can be the basis for a downward departure (see Guidelines at 17; People v. Hawthorne, 158 A.D.3d 651, 653–654, 70 N.Y.S.3d 537 ; People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), the evidence submitted by the defendant at the hearing failed to demonstrate by a preponderance of the evidence that his response to sex offender treatment was exceptional.
An aggravating factor that may support an upward departure from an offender's presumptive risk level "is one which tends to establish a higher likelihood of reoffense or danger to the community ... than the presumptive risk level" calculated on the risk assessment instrument ( People v. Wyatt, 89 A.D.3d at 121, 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 ). When the People seek an upward departure, "they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the risk assessment instrument, and prove the facts in support of the aggravating factor by clear and convincing evidence" ( People v. Ragabi, 150 A.D.3d 1161, 1161, 52 N.Y.S.3d 655 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). "Once this burden is satisfied, the court may, in its discretion, choose to upwardly depart if the factor indicates that the point score on the risk assessment instrument has resulted in an underassessment of the offender's actual risk to the public" ( People v. Ragabi, 150 A.D.3d at 1161, 52 N.Y.S.3d 655 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. DeDona, 102 A.D.3d 58, 68, 954 N.Y.S.2d 541 ; People v. Wyatt, 89 A.D.3d at 123, 931 N.Y.S.2d 85 ).
Here, the People established, by clear and convincing evidence, that the brutal and violent nature of the defendant's conduct toward the complainant was an aggravating factor warranting an upward departure from the defendant's presumptive risk level (see People v. Washington, 186 A.D.3d 1275, 127 N.Y.S.3d 902 ; People v. Fuentes, 177 A.D.3d 788, 110 N.Y.S.3d 306 ; People v. Maldonado, 127 A.D.3d 714, 4 N.Y.S.3d 534 ; People v. Suber, 91 A.D.3d 619, 620, 935 N.Y.S.2d 898 ). Additionally, the People presented clear and convincing evidence that the defendant's concurrent convictions of assault in the second degree and criminal obstruction of breathing or blood circulation constituted an aggravating factor not adequately taken into account by the Guidelines (see Guidelines at 13–14; People v. Scott, 172 A.D.3d 766, 767, 97 N.Y.S.3d 704 ; People v. Diaz, 151 A.D.3d 891, 56 N.Y.S.3d 542 ; People v. Scales, 134 A.D.3d 790, 792, 20 N.Y.S.3d 652 ; People v. Amin, 128 A.D.3d 785, 9 N.Y.S.3d 158 ).
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure, granted the People's application for an upward departure, and designated the defendant a level three sex offender.
CHAMBERS, J.P., MILLER, DUFFY, LASALLE and WOOTEN, JJ., concur.