Opinion
2017–12242
12-12-2018
PEOPLE of State of New York, Respondent, v. Edward LEAKE, Appellant.
Diane T. Webster, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
Diane T. Webster, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), entered September 22, 2017, 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.
The defendant was convicted of two counts of rape in the first degree and one count of burglary in the first degree. After a Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) risk level assessment hearing, the Supreme Court denied the defendant's application for a downward departure from the presumptive risk level and designated him a level three sex offender. The defendant appeals.
Contrary to the defendant's contention, the Supreme Court properly assessed the defendant 10 points under risk factor 8 because he was 20 years old at the time he committed the underlying sex offense (see SORA: Risk Assessment Guidelines and Commentary at 13 [2006]; People v. Quinn, 99 A.D.3d 776, 952 N.Y.S.2d 235 ; People v. Serrano, 61 A.D.3d 946, 947, 877 N.Y.S.2d 472 ). Similarly, the court also properly assessed the defendant 15 points under risk factor 11 based upon evidence of the defendant's history of substance abuse (see People v. Hernandez, 153 A.D.3d 862, 57 N.Y.S.3d 906 ; People v. Zavala, 114 A.D.3d 653, 654, 979 N.Y.S.2d 660 ; People v. Finizio, 100 A.D.3d 977, 978, 954 N.Y.S.2d 636 ), as well as 20 points under risk factor 13 based, among other things, on evidence that the defendant engaged in sexual misconduct while confined (see People v. Anderson, 151 A.D.3d 767, 768, 56 N.Y.S.3d 240 ; People v. George, 142 A.D.3d 1059, 1060, 38 N.Y.S.3d 561 ).
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 [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 ; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006] ). 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 over-assessment 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, although the defendant identified two factors that are not taken into account by the SORA Guidelines, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure (see People v. Baisley, 124 A.D.3d 485, 485–486, 1 N.Y.S.3d 94 ; see also People v. Rivera, 109 A.D.3d 805, 971 N.Y.S.2d 125 ).
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.