Opinion
2021-03621
06-09-2021
The People of the State of New York, respondent, v. Robert L. Mott, appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent. Thomas N.N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Thomas N.N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant.
MARK C. DILLON, J.P. LEONARD B. AUSTIN BETSY BARROS VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Dutchess County (Edward T. McLoughlin, J.), dated December 6, 2019, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant is designated a level two sex offender.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the County Court, after a hearing, assessed the defendant 95 points, granted the People's application to upwardly depart from the defendant's presumptive risk level two designation, and designated the defendant a level three sex offender. The defendant appeals.
In a SORA proceeding, when a party seeks to depart from the presumptive risk level indicated by the factor score calculated pursuant to the SORA: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines), the SORA court "must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level indicated by the offender's [G]uidelines factor score. At the first step, the court must decide whether the aggravating or mitigating circumstances alleged... are, as a matter of law, of a kind or to a degree not adequately taken into account by the [G]uidelines" (People v Gillotti, 23 N.Y.3d 841, 861; see Guidelines at 4). "At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand. If the party applying for a departure surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (People v Gillotti, 23 N.Y.3d at 861 [citations omitted]). If, however, the party does not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level (see People v Lewis, 173 A.D.3d 913, 914; People v Manougian, 132 A.D.3d 746, 746-747; People v Campbell, 98 A.D.3d 5, 13-14).
Here, we agree with the defendant that the County Court lacked the discretion to upwardly depart from the presumptive risk assessment level because the People failed, as a matter of law, to identify an aggravating factor that was not adequately taken into account by the Guidelines. In seeking an upward departure from the presumptive risk assessment level established at the hearing, the People relied upon the defendant's prior conviction of public lewdness and indications in the record suggesting that he had not accepted responsibility for his sexual misconduct. The defendant's prior conviction of public lewdness constituted a misdemeanor sex crime, which is already accounted for under risk factor 9 of the Guidelines (see Guidelines, risk factor 9[3]; People v Perez, 162 A.D.3d 1083, 1084). Similarly, an offender's lack of acceptance of responsibility is accounted for under risk factor 12 (see Guidelines, risk factor 12), and thus, was not a proper basis for a departure (see People v Shackelton, 117 A.D.3d 1283, 1284; People v Grady, 81 A.D.3d 1464, 1464).
Accordingly, the County Court should not have granted the People's application for an upward departure (see People v Lewis, 173 A.D.3d at 914; People v Mota, 165 A.D.3d 988, 989; People v Garcia, 153 A.D.3d 735, 737). Consequently, we reverse the order appealed from and designate the defendant a level two sex offender.
DILLON, J.P., AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.