Opinion
2020–04834
03-30-2022
PEOPLE of State of New York, respondent, v. Bruce HAIMS, appellant.
N. Scott Banks, Hempstead, NY (Tammy Feman and Dori Cohen of counsel), for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Sarah S. Rabinowitz and Benjamin A. Kussman of counsel), for respondent.
N. Scott Banks, Hempstead, NY (Tammy Feman and Dori Cohen of counsel), for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Sarah S. Rabinowitz and Benjamin A. Kussman of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Nassau County (Terrence P. Murphy, J.), entered May 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.
In 1984, the defendant was convicted, upon a jury verdict, of murder in the second degree, manslaughter in the second degree, and attempted rape in the first degree, and was sentenced to an aggregate prison term of 25 years to life. In 1991, this Court affirmed the conviction (see People v. Haims, 171 A.D.2d 878, 567 N.Y.S.2d 805 ). Prior to his release from prison, the Supreme Court conducted a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA). Pursuant to the SORA: Risk Assessment Guidelines and Commentary (2006 [hereinafter Guidelines]), the court applied an automatic override applicable where a defendant causes the victim's death (see Guidelines at 3). The court denied the defendant's request for a downward departure and designated him a level three sex offender. The defendant appeals.
The People sustained their burden of proving, by clear and convincing evidence, the applicability of the override for causing the death of the victim (see People v. Simmons, 170 A.D.3d 904, 904, 93 N.Y.S.3d 862 ). "Once the People have sustained this burden, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic’ " ( People v. Johnson, 135 A.D.3d 720, 720–721, 22 N.Y.S.3d 238, quoting People v. Gordon, 133 A.D.3d 835, 836, 20 N.Y.S.3d 165 ). "However, the [c]ourt nevertheless retain[s] the discretion to depart from the presumptive risk level obtained pursuant to the automatic override, although such departures are the exception, and not the rule" ( People v. Simmons, 170 A.D.3d at 904, 93 N.Y.S.3d 862 ).
A defendant seeking a downward departure from his or her 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 [SORA] 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 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Velasquez, 145 A.D.3d 924, 924, 42 N.Y.S.3d 845 ). 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 (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
Here, the defendant failed to establish that a downward departure was warranted. Most of the alleged mitigating circumstances identified by the defendant, including his lack of history of drug or alcohol abuse, his excellent disciplinary record while in prison, his participation in education programs, and access to a supportive community upon release, including housing and employment assurances, are adequately taken into account by the SORA Guidelines (see People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908 ; People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ).
While a " ‘defendant's response to [sex offender] treatment may qualify as a ground for a downward departure where the response is exceptional’ " ( People v. Del–Carmen, 186 A.D.3d 878, 879, 128 N.Y.S.3d 608, quoting People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561 ), the defendant failed to establish that his response to such treatment was exceptional (see People v. Del–Carmen, 186 A.D.3d at 879, 128 N.Y.S.3d 608 ; People v. Robinson, 179 A.D.3d 1104, 1105, 114 N.Y.S.3d 676 ; People v. Riverso, 96 A.D.3d 1533, 1534, 947 N.Y.S.2d 250 ).
Although "advanced age" and a debilitating medical condition may constitute a basis for a downward departure (Guidelines at 5; see People v. Mitchell, 196 A.D.3d 516, 518, 146 N.Y.S.3d 851 ), the defendant failed to preserve this argument for appellate review (see People v. Kaiser, 168 A.D.3d 1002, 1003, 91 N.Y.S.3d 516 ). In any event, the defendant failed to demonstrate that his age of 61 years old at the time of the SORA hearing and his alleged medical condition constituted appropriate mitigating factors that minimized his risk of reoffense (see People v. Samuels, 199 A.D.3d 1034, 1036, 157 N.Y.S.3d 303 ; People v. Mitchell, 196 A.D.3d at 518, 146 N.Y.S.3d 851 ; People v. Rivas, 185 A.D.3d 740, 740–741, 126 N.Y.S.3d 185 ).
Moreover, while "[r]ehabilitation on the basis of the totality of the record is a mitigating factor that is not taken into account by the [SORA] Guidelines" ( People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701 ), the defendant did not prove by a preponderance of the evidence the facts in support of this alleged mitigating factor (see People v. Moultrie, 147 A.D.3d 800, 801, 45 N.Y.S.3d 590 ).
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
CONNOLLY, J.P., CHRISTOPHER, ZAYAS and GENOVESI, JJ., concur.