Opinion
380 KA 19-00528
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Chester J. THOMAS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that Supreme Court erred in granting an upward departure from his presumptive classification as a level one risk to a level two risk. We reject that contention.
It is well settled that when the People establish, by clear and convincing evidence (see Correction Law § 168-n [3] ), the existence of aggravating factors that are "as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines," a court "must exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure" from a sex offender's presumptive risk level ( People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; see People v. Sincerbeaux , 27 N.Y.3d 683, 689-690, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] ).
Here, the People established by clear and convincing evidence the existence of aggravating factors not adequately taken into account by the risk assessment guidelines. Contrary to defendant's contention, the court "properly relied upon factors that, ‘as a matter of law, ... tend[ed] to establish a higher likelihood of reoffense or danger to the community’ " ( People v. Vaillancourt , 112 A.D.3d 1375, 1376, 978 N.Y.S.2d 517 [4th Dept. 2013], lv denied 22 N.Y.3d 864, 2014 WL 1281989 [2014] ; see People v. Wyatt , 89 A.D.3d 112, 123, 931 N.Y.S.2d 85 [2d Dept. 2011], lv denied 18 N.Y.3d 803, 2012 WL 43762 [2012] ), including his history of violence toward the victim that, despite criminal sanctions resulting therefrom, subsequently escalated to the underlying violent sex offense against the victim (see People v. Gonzalez , 178 A.D.3d 741, 742, 111 N.Y.S.3d 241 [2d Dept. 2019], lv denied 35 N.Y.3d 902, 2020 WL 1582499 [2020] ; People v. Amorin , 164 A.D.3d 1483, 1483-1484, 82 N.Y.S.3d 544 [2d Dept. 2018] ; People v. Davis , 139 A.D.3d 1226, 1228, 31 N.Y.S.3d 656 [3d Dept. 2016] ). Contrary to defendant's further contention, the aggravating factors outweighed any mitigating factors, and the totality of the circumstances thus warranted an upward departure to avoid an under-assessment of defendant's dangerousness and risk of sexual recidivism (see People v. Mangan , 174 A.D.3d 1337, 1339, 101 N.Y.S.3d 809 [4th Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6318219 [2019] ; People v. Sczerbaniewicz , 126 A.D.3d 1348, 1349-1350, 5 N.Y.S.3d 644 [4th Dept. 2015] ; see generally Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).