Opinion
72 KA 16–01990
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Thomas D. DOWNER, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), defendant contends, and the People correctly concede, that County Court erred in assessing points for his criminal history based upon a prior juvenile delinquency adjudication (see People v. Gibson, 149 A.D.3d 1567, 1568, 51 N.Y.S.3d 458 [4th Dept. 2017] ; People v. Updyke, 133 A.D.3d 1063, 1064, 19 N.Y.S.3d 202 [3d Dept. 2015] ). Removing those points renders defendant a presumptive level one risk.
Nevertheless, we reject defendant's further contention that the court erred in determining that an upward departure from his presumptive risk level was warranted, and we therefore modify the order by determining that defendant is a level two risk pursuant to SORA. "An upward departure is warranted where, as here, there exists an aggravating ... factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v. Poleun, 119 A.D.3d 1378, 1379, 988 N.Y.S.2d 827 [4th Dept. 2014], affd 26 N.Y.3d 973, 18 N.Y.S.3d 586, 40 N.E.3d 563 [2015] [internal quotation marks omitted]; see People v. Tatner, 149 A.D.3d 1595, 1595, 53 N.Y.S.3d 445 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908393 [2017] ). Here, the People established by clear and convincing evidence the existence of aggravating factors not adequately taken into account by the risk assessment guidelines (see Tatner, 149 A.D.3d at 1595–1596, 53 N.Y.S.3d 445 ). They established that defendant sexually abused a five-year-old relative when he was 11 years old, and was subsequently placed with the Office of Children and Family Services (OCFS) for a period of two years. Additionally, he was placed with OCFS for a period of one year as a result of sexually abusive conduct that he committed when he was 15 years old. Despite those placements, defendant reoffended when he was 18 years old, resulting in the instant conviction (see generally People v. Duryee, 130 A.D.3d 1487, 1488, 12 N.Y.S.3d 731 [4th Dept. 2015] ; 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] ).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.