Opinion
12-22-2016
The PEOPLE of the State of New York, Respondent, v. Robert C. SCONE, Appellant.
John R. Trice, Elmira, for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
John R. Trice, Elmira, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, ROSE, MULVEY and AARONS, JJ.
AARONS, J.Appeal from an order of the County Court of Broome County (Cawley, J.), entered March 11, 2015, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.
Defendant was convicted upon his guilty plea of two counts of attempted sexual abuse in the first degree for subjecting two girls, ages three and four, to sexual contact while babysitting them in 2005. He was sentenced in 2012 to concurrent prison terms of 1 ? to 4 years. Defendant also has a prior felony sex offense conviction from 1990 for sexual abuse in the first degree stemming from his abuse of two children, ages seven and 10, for which he was sentenced to a prison term of 2 to 6 years and adjudicated a risk level two sex offender. In anticipation of his release from prison on the 2012 sentence, the Board of Examiners of Sex Offenders calculated a total risk factor score of 85, which fell within the range of a risk level two sex offender. However, the Board noted that defendant's prior felony conviction for a sex offense constituted an override, presumptively classifying him as a risk level three sex offender (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3–4 [2006] ). Following a hearing pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C), County Court denied defendant's request for a downward departure and classified him as a risk level three sex offender, with a designation as a sexually violent and predicate felony offender. Defendant now appeals.
We affirm. Defendant argues that County Court should have granted his request for a downward departure to a risk level two sex offender based upon the 15–year lapse between his sex crimes against children, his acceptance of responsibility and his completion of a sex offender treatment program while in prison. While the application of an override for defendant's prior felony sex offense conviction is not mandatory, it raised the presumptive risk level to a level three (see People v. Williamson, 73 A.D.3d 1398, 1399, 901 N.Y.S.2d 761 [2010] ; People v. Mabb, 32 A.D.3d 1135, 1135, 821 N.Y.S.2d 483 [2006] ). It was defendant's burden to establish by a preponderance of the evidence that a downward modification was warranted in that mitigating factors exist that were not adequately taken into account by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861–863, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Moss, 22 N.Y.3d 1094, 1095, 982 N.Y.S.2d 55, 5 N.E.3d 26 [2014] ; People v. Mabb, 32 A.D.3d at 1135, 821 N.Y.S.2d 483 ).
Defendant did not challenge the assessment of points in the risk assessment instrument.
Defendant argued that his 1990 conviction was counted under both risk factor 9 for criminal history and for purposes of the presumptive override, and that there was a 15–year lapse between crimes, together warranting a downward modification. We disagree, as the assignment of 30 points under factor 9 reflected that defendant had a prior sex crime conviction but did not take into consideration that it was a felony sex crime (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Guidelines at factor 9 and Specific Guidelines at 13–14 [2006] ). We have previously determined that where the prior felony conviction is for a sex crime, such conviction may be used as both an override factor and a basis upon which to add 30 points for risk factor 9 on the risk assessment instrument (see People v. Johnson, 46 A.D.3d 1032, 1033, 848 N.Y.S.2d 379 [2007] ; see also People v. Reynolds, 90 A.D.3d 630, 631, 934 N.Y.S.2d 448 [2011] ; People v. Barrier, 58 A.D.3d 1086, 1087, 872 N.Y.S.2d 219 [2009], lvs. denied 12 N.Y.3d 707, 879 N.Y.S.2d 54, 906 N.E.2d 1088 [2009] ). With regard to the lapse of time between defendant's sex crimes, this is reflected in the fact that he was not assigned any points under risk factor 10 for recency of his prior crime (see People v. Montanez, 88 A.D.3d 1278, 1280, 930 N.Y.S.2d 380 [2011] ). We agree with County Court that this time interval is not a mitigating factor warranting a downward departure, particularly given the similarities in defendant's repeated and egregious conduct perpetrated against young children.Further, defendant was not assigned any points for failing to accept responsibility under risk factor 12, which, contrary to his claims, adequately reflected his guilty plea and expressions of remorse (see People v. Filkins, 128 A.D.3d 1231, 1232, 9 N.Y.S.3d 706 [2015], lv. denied 26 N.Y.3d 904, 2015 WL 5254877 [2015] ). His completion of sex offender treatment in prison was also taken into account in the scoring of his conduct while confined under risk factor 13, for which no points were assigned (see People v. Kotzen, 100 A.D.3d 1162, 1163, 954 N.Y.S.2d 237 [2012], lv. denied 20 N.Y.3d 860, 2013 WL 538022 [2013] ). County Court explained its reasons for denying the requested downward departure and we find no abuse of discretion in that decision, as defendant failed to prove the existence of any mitigating factors by a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d at 861–863, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also People v. Howard, 27 N.Y.3d 337, 342–343, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ; People v. Pace, 121 A.D.3d 1315, 1316, 995 N.Y.S.2d 296 [2014], lvs. denied 24 N.Y.3d 914, 2015 WL 588844 [2015] ).
ORDERED that the order is affirmed, without costs.
McCARTHY, J.P., GARRY, ROSE and MULVEY, JJ., concur.