Opinion
12-07-2016
PEOPLE of State of New York, respondent, v. Laurent BENOIT, appellant.
Lynn W.L. Fahey, New York, NY (Bryan D. Kreykes of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Marielle Burnett on the brief), for respondent.
Lynn W.L. Fahey, New York, NY (Bryan D. Kreykes of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Marielle Burnett on the brief), for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated March 8, 2016, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
A defendant "seeking a [downward] departure from the presumptive risk level ... must first identify a mitigating circumstance or circumstances ‘of a kind or to a degree not adequately taken into account by the guidelines' " (People v. Torres, 124 A.D.3d 744, 745, 998 N.Y.S.2d 464, quoting People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). "The defendant then has the burden of proving by a preponderance of the evidence the existence of those circumstances in his or her case" (People v. Torres, 124 A.D.3d at 745, 998 N.Y.S.2d 464 ). "If the defendant makes that twofold showing, the court must determine whether the presumptive risk level overassesses the danger presented by the defendant and the risk of reoffense and, thus, whether a downward departure is warranted" (id. at 745, 998 N.Y.S.2d 464 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Here, the defendant's remorse and acceptance of responsibility, appropriate living situation upon release, and relationship with the victims were circumstances that were adequately taken into account under the SORA guidelines (see People v. Alemany, 13 N.Y.3d 424, 893 N.Y.S.2d 448, 921 N.E.2d 140 ; People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ; People v. Torres, 124 A.D.3d at 745–746, 998 N.Y.S.2d 464 ; People v. Blackman, 78 A.D.3d 803, 912 N.Y.S.2d 63 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12, 15, 17–18 [2006] ). Accordingly, to the extent that the defendant relied upon these factors, he failed to demonstrate that they constituted mitigating circumstances "of a kind or to a degree not adequately taken into account by the [SORA] guidelines" (People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Although advanced age and debilitating illness may constitute a basis for a downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Santiago, 137 A.D.3d 762, 765, 26 N.Y.S.3d 339 ; People v. Torres, 124 A.D.3d at 746, 998 N.Y.S.2d 464 ; People v. Stevens, 55 A.D.3d 892, 893, 867 N.Y.S.2d 108 ), the Supreme Court providently exercised its discretion in determining that the defendant's age of 73 and purported health conditions did not result in the overassessment of the defendant's risk to public safety given, inter alia, that the defendant committed some of the subject offenses when he was 61 years old, that the defendant did not appear at the SORA hearing to testify as to his alleged impairments, and that the defendant did not proffer medical evidence supporting his application (see People v. Torres, 124 A.D.3d at 746, 998 N.Y.S.2d 464 ; People v. Lucius, 122 A.D.3d 819, 996 N.Y.S.2d 659 ; People v. Grubbs, 107 A.D.3d 771, 773, 967 N.Y.S.2d 112 ; cf. People v. Stevens, 55 A.D.3d 892, 867 N.Y.S.2d 108 ).
Accordingly, the defendant was properly designated a level two sex offender.