Opinion
12-20-2023
PEOPLE of State of New York, respondent, v. Artic ROGERS, appellant.
Patricia Pazner, New York, NY (Patty C. Walton of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
Patricia Pazner, New York, NY (Patty C. Walton of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, WILLIAM G. FORD, JJ. DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Danny K. Chun, J.), dated April 22, 2021, 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, upon his plea of guilty, of two counts of sex trafficking and one count of kidnapping in the second degree. The defendant’s conditional release date was scheduled for April 14, 2021.
The defendant’s hearing to determine his risk level under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA) was scheduled for April 12, 2021. On the date of the hearing, the People served the defendant with certain paperwork, including grand jury transcripts, that they intended to rely upon at the hearing. The defendant argued that the paperwork should be precluded as untimely pursuant to Correction Law § 168–n(3). The Supreme Court denied preclusion, but stated that it would consider an adjournment request. The defendant then requested an adjournment, despite noting that an adjournment would delay his release.
Following a hearing on April 22, 2021, the Supreme Court assessed the defendant a total of 145 points on the risk assessment instrument, denied the defendant’s request for a downward departure, and designated him a level three sex offender. The defendant appeals.
[1, 2] Contrary to the defendant’s contention, the Supreme Court properly denied his request to preclude the evidence submitted by the People on the morning of his initial hearing. Although the People failed to provide the defendant with timely notice of this evidence as required by Correction Law § 168-n(3), the court afforded the defendant a meaningful opportunity to respond by granting his request for an adjournment (see People v. Inghilleri, 21 A.D.3d 404, 405, 799 N.Y.S.2d 793). The defendant’s contention that he was improperly forced to choose between an adjournment and release from custody is unpreserved for appellate review, since, despite noting that an adjournment would delay his release, he did not object to the adjournment on this ground (see People v. Angelo, 3 A.D.3d 482, 769 N.Y.S.2d 753).
[3–5] "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. Wells, 138 A.D.3d 947, 950, 30 N.Y.S.3d 198, quoting Correction Law § 168–n[3]). "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 … or any other reliable source, including reliable hearsay" (People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446). "A victim’s grand jury testimony has been found to constitute ‘reliable hearsay’ which is routinely relied upon by courts in assessing points under SORA" (People v. Wells, 138 A.D.3d at 950, 30 N.Y.S.3d 198). Here, clear and convincing evidence supported the assessment of 20 points under risk factor 4 (duration of offense conduct with victim), as the defendant engaged in "two or more acts of sexual contact, at least one of which is an act of sexual intercourse … which acts are separated in time by at least 24 hours" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006] [hereinafter Guidelines]), with at least one of the underage victims. Further, clear and convincing evidence supported the assessment of 20 points under risk factor 7 (relationship with victim), as the defendant and one of the victims were strangers within the meaning of SORA, as the offenses against this victim began on the same day of their first meeting (see People v. Fuhrtz, 180 A.D.3d 944, 946, 120 N.Y.S.3d 57).
[6–8] Finally, the defendant was not entitled to a downward departure from his presumptive risk level designation. "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. Bigelow, 175 A.D.3d 1443, 1443, 107 N.Y.S.3d 406, quoting People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85). 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 841, 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). "The Guidelines … make clear that departures from the presumptive risk level should be the exception, not the rule" (People v. Wyatt, 89 A.D.3d at 121, 931 N.Y.S.2d 85).
[9, 10] Here, while "a ‘physical condition that minimizes [defendant’s] risk of reoffense’ has been recognized by the Board as a basis upon which to depart downward" (People v. Williams, 148 A.D.3d 540, 544, 49 N.Y.S.3d 671, quoting Guidelines at 5), the defendant failed to establish that his health problems would minimize the likelihood of recidivism (see People v. Portalatin, 145 A.D.3d 463, 464, 41 N.Y.S.3d 712). Further, while "a defendant’s response to treatment may qualify as a ground for a downward departure where the response is exceptional" (People v. Figueroa, 138 A.D.3d 708, 709, 27 N.Y.S.3d 885), the defendant failed to provide any evidence that his response to sex offender treatment was exceptional. The defendant’s remaining alleged mitigating factors were adequately taken into account by the Guidelines.
Accordingly, the Supreme Court properly designated the defendant a level three sex offender.
CONNOLLY, J.P., IANNACCI, WOOTEN and FORD, JJ., concur.