Opinion
No. 2023-03998
10-30-2024
The People of the State of New York, respondent, v. Timothy Laskaris, appellant.
Patricia Pazner, New York, NY (Zachory Nowosadzki of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and David Cao of counsel), for respondent.
Patricia Pazner, New York, NY (Zachory Nowosadzki of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and David Cao of counsel), for respondent.
MARK C. DILLON, J.P., LARA J. GENOVESI, CARL J. LANDICINO, JAMES P. MCCORMACK, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated March 15, 2023, 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 this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant 75 points on the risk assessment instrument, rendering him a presumptive level two sex offender. The court denied the defendant's application for a downward departure from his presumptive risk level and designated him a level two sex offender. The defendant appeals.
Contrary to the defendant's contention, the Supreme Court properly denied his application for a downward departure, since he failed to demonstrate the existence of a mitigating factor that tended to establish a lower likelihood of reoffense or danger to the community (see People v Gillotti, 23 N.Y.3d 841, 861; People v Samuels, 199 A.D.3d 1034, 1036-1037). When a defendant seeks a downward departure from the presumptive risk level, he or she 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 Coley, 223 A.D.3d 758, 759 [internal quotation marks omitted]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti, 23 N.Y.3d at 861; People v Wyatt, 89 A.D.3d 112, 128). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factors 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" (People v Williams, 209 A.D.3d 889, 890; see People v Gillotti, 23 N.Y.3d at 861).
Here, the defendant's remorse, acceptance of responsibility, and rehabilitation were circumstances that were adequately taken into account under the Guidelines (see Guidelines at 15-16). Accordingly, to the extent that the defendant relied upon these factors, he failed to demonstrate that they constituted mitigating circumstances "of a kind or to a degree not adequately taken into account by the [G]uidelines" (People v Gillotti, 23 N.Y.3d at 861).
Although advanced age may constitute a basis for a downward departure (see Guidelines at 5; People v Dolan, 188 A.D.3d 729, 731; People v Benoit, 145 A.D.3d 687, 688; People v Santiago, 137 A.D.3d 762, 764-765), the Supreme Court providently exercised its discretion in determining that the defendant's age of 72 and purported health conditions did not result in an overassessment of the defendant's risk to public safety given, inter alia, that the defendant committed the underlying offense when he was 59 years old (see People v Wallason, 169 A.D.3d 728, 729; People v Rodriguez, 159 A.D.3d 842, 843; People v Benoit, 145 A.D.3d at 688). Moreover, the defendant failed to provide sufficient medical evidence to establish by a preponderance of the evidence that his purported health conditions and physical limitations were sufficient to reduce his risk of reoffending (see People v Felton, 175 A.D.3d 734, 735; cf. People v Sanchez, 186 A.D.3d 880, 882; People v Stevens, 55 A.D.3d 892, 894).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
DILLON, J.P., GENOVESI, LANDICINO and MCCORMACK, JJ., concur.