Opinion
No. 2020-07498
04-12-2023
People of State of New York, respondent, v. Robert Infantino, appellant.
Laurette D. Mulry, Riverhead, NY (Genevieve M. Cahill of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Kathleen Becker Langlan of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Genevieve M. Cahill of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Kathleen Becker Langlan of counsel), for respondent.
BETSY BARROS, J.P. JOSEPH J. MALTESE JOSEPH A. ZAYAS DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated March 3, 2020, 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.
In 2010, the defendant was convicted, upon his pleas of guilty, of unlawful surveillance in the second degree (12 counts) and possessing a sexual performance by a child (64 counts) under Indictment No. 2292/08, and unlawful surveillance in the second degree (32 counts) under Indictment No. 3153/08.
In anticipation of the defendant's release from prison, the Supreme Court conducted a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA). After the hearing, the court assessed the defendant 80 points, resulting in a presumptive level two designation, denied his application for a downward departure, and designated him a level two sex offender.
"In establishing a sex offender's appropriate risk level assessment under SORA, the People have 'the burden of proving the facts supporting the determinations sought by clear and convincing evidence'" (People v Rudd, 208 A.D.3d 696, 696, quoting Correction Law § 168-n[3]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders..., or any other reliable source, including reliable hearsay" (People v Crandall, 90 A.D.3d 628, 629; see Guidelines at 5; see also People v Mingo, 12 N.Y.3d 563).
On appeal, the defendant contends that the evidence was insufficient to establish that the assessment of 30 points under risk factor 5 for the age of the victim being 10 years or less was warranted on the ground that certain grand jury testimony was unreliable and vague. This contention is unpreserved for appellate review as the defendant did not raise this ground at the SORA hearing (see People v Gillotti, 23 N.Y.3d 841, 854; People v Satornino, 200 A.D.3d 813; People v Butler, 157 A.D.3d 727, 730). In any event, the assessment of 30 points under risk factor 5 was supported by clear and convincing evidence, including the grand jury testimony of the mother of one victim and another victim's written statement (see People v Mingo, 12 N.Y.3d at 573; People v Gorostiza, 210 A.D.3d 1118, 1119; People v Herbert, 186 A.D.3d 1732).
A defendant seeking a downward departure from the 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 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; see People v Gillotti, 23 N.Y.3d at 861; see also Guidelines at 4). 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; People v Champagne, 140 A.D.3d 719, 720).
While the Supreme Court erroneously applied a "clear and convincing" standard to the defendant's application for a downward departure, the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Medina, 165 A.D.3d 1184, 1184-1185; People v Ramirez, 163 A.D.3d 1012). Although advanced age may constitute a basis for a downward departure, an offender must demonstrate that advanced age at the time of the SORA determination resulted in the overassessment of the offender's risk to public safety (see People v Adams, 174 A.D.3d 828, 829; People v Saintilus, 169 A.D.3d 838, 839). Here, the defendant, who committed the sex offenses when he was 50 years old, failed to demonstrate that his age at the time of the SORA determination, 62 years old, resulted in an overassessment of his risk to public safety (see People v Parisi, 212 A.D.3d 666; People v Ciccarello, 187 A.D.3d 1224, 1226; People v Saintilus, 169 A.D.3d at 839).
The defendant's contention that he was entitled to a downward departure based upon a lack of a prior criminal history is unpreserved for appellate review as he failed to raise this factor as a ground for a downward departure at the SORA hearing (see People v Disla, 186 A.D.3d 755, 756; People v Wilcox, 178 A.D.3d 1107, 1109). In any event, the defendant's lack of a prior criminal history was adequately taken into account by the Guidelines (see People v Bigelow, 175 A.D.3d 1443, 1444; People v Rocano-Quintana, 149 A.D.3d 1114, 1115). The other alleged mitigating factors identified by the defendant, including his positive disciplinary record while incarcerated, his completion of a sex offender treatment program, and the strict supervision that he will be under on parole, were adequately taken into account by the Guidelines (see People v Abdullah, 210 A.D.3d 704, 706; People v Rocano-Quintana, 149 A.D.3d at 1115).
Since the factors identified by the defendant were either adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence, the Supreme Court did not have the discretion to depart from his presumptive risk level (see People v Rocano-Quintana, 149 A.D.3d at 1115).
BARROS, J.P., MALTESE, ZAYAS and DOWLING, JJ., concur.