Opinion
2018-1038 K C
08-27-2021
The PEOPLE of the State of New York, Respondent, v. Frankie HATTON, Appellant.
New York City Legal Aid Society (Arthur H. Hopkirk of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Morgan J. Dennehy and Daniel Berman of counsel), for respondent.
New York City Legal Aid Society (Arthur H. Hopkirk of counsel), for appellant.
Kings County District Attorney (Leonard Joblove, Morgan J. Dennehy and Daniel Berman of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.
ORDERED that the order is affirmed, without costs.
In February 2018, defendant was convicted, upon his plea of guilty, of forcible touching ( Penal Law § 130.52 [1] ). On April 26, 2018, at a hearing held pursuant to the Sex Offender Registration Act (SORA) (see Correction Law § 168-n ), defendant was assessed a total of 80 points on the risk assessment instrument, thereby presumptively classifying him as a level two sex offender. The People presented a case summary of the Board of Examiners detailing defendant's repeated sexual attacks in the New York City subways in 2009 against six women, and similar attacks in 2017 and 2018. The People argued, among other things, that the Criminal Court should upwardly depart from the presumptive risk level to risk level three due to the escalating nature of defendant's sexual misconduct. The court granted the People's application for an upward departure and denied defendant's request for a downward departure. By order entered April 26, 2018, the Criminal Court designated defendant a level three sex offender.
On appeal, defendant challenges the granting of the People's request for an upward departure and the denial of his request for a downward departure.
In seeking an upward departure, the People 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 (see People v Gillotti , 23 NY3d 841, 861 [2014] ; People v DeDona , 102 AD3d 58 [2012] ; People v Wyatt , 89 AD3d 112 [2011] ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). The court may, in its discretion, choose to upwardly depart if the People have met their burden (see People v Gillotti , 23 NY3d at 861 ; People v DeDona , 102 AD3d at 68 ; People v Wyatt , 89 AD3d at 121 ).
Here, the Criminal Court properly determined that the People had presented clear and convincing evidence of an aggravating factor not adequately taken into account by the SORA guidelines, namely, his escalating history of sexual misconduct (see People v Ragabi , 150 AD3d 1161, 1162 [2017] ; People v Ziliox , 145 AD3d 925 [2016] ; People v Davis , 139 AD3d 1226, 1228 [2016] ; People v Jackson , 139 AD3d 1031 [2016] ). In seeking a downward departure, defendant failed in his initial burden of establishing, by a preponderance of the evidence (see People v Wyatt , 89 AD3d at 127-128 ), facts which are not otherwise adequately taken into account by the SORA guidelines (see People v Lawrence , 40 Misc 3d 131[A], 2013 NY Slip Op 51130[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), which would warrant such a downward departure.
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.