Opinion
204 KA 19-00216
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Jeffrey COON, Defendant-Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court erred in granting an upward departure from his recalculated presumptive classification as a level two risk to a level three risk. We reject that contention.
It is well settled that when the People establish, by clear and convincing evidence (see Correction Law § 168-n [3] ), the existence of aggravating factors that are "as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines," a court "must exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure" from a sex offender's presumptive risk level ( People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; see People v. Sincerbeaux , 27 N.Y.3d 683, 689-690, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ).
Here, the People established by clear and convincing evidence the existence of aggravating factors not adequately taken into account by the risk assessment guidelines, including the quantity and nature of the child pornography found in defendant's possession that underlies his current offense, i.e., images and videos depicting sadomasochistic acts and bestiality (see People v. Tatner , 149 A.D.3d 1595, 1595-1596, 53 N.Y.S.3d 445 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908393 [2017] ; People v. McCabe , 142 A.D.3d 1379, 1380, 38 N.Y.S.3d 352 [4th Dept. 2016] ), and his prior history of sexual misconduct with at least one child (see People v. Zimmerman , 101 A.D.3d 1677, 1678, 957 N.Y.S.2d 525 [4th Dept. 2012] ). Contrary to defendant's contention, the statements in the presentence report and case summary constitute "reliable hearsay" upon which the court properly relied in making the upward departure ( Correction Law § 168-n [3] ; see People v. Mingo , 12 N.Y.3d 563, 572-573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; People v. Tidd , 128 A.D.3d 1537, 1537-1538, 9 N.Y.S.3d 517 [4th Dept. 2015], lv denied 25 N.Y.3d 913, 2015 WL 3971352 [2015] ). Finally, defendant failed to identify a mitigating factor not adequately taken into account by the risk assessment guidelines and, in any event, the purported mitigating factor is outweighed by the aggravating factors (see People v. Mangan , 174 A.D.3d 1337, 1339, 101 N.Y.S.3d 809 [4th Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6318219 [2019] ; People v. Sczerbaniewicz , 126 A.D.3d 1348, 1349-1350, 5 N.Y.S.3d 644 [4th Dept. 2015] ).