Opinion
2019–08903
10-21-2020
PEOPLE of State of New York, respondent, v. Keith TODD, appellant.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.
LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (John Latella, J.), dated July 15, 2019, 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.
Following a nonjury trial, the defendant was convicted of sodomy in the first degree, course of sexual conduct against a child in the first degree, and endangering the welfare of a child. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court denied the defendant's application for a downward departure from the presumptive risk assessment level and designated him a level three sex offender. The defendant appeals.
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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines] ). 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 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, the defendant failed to prove by a preponderance of the evidence that a downward departure was warranted. Although "advanced age" may constitute a basis for a downward departure ( People v. McClendon, 175 A.D.3d 1329, 1331, 108 N.Y.S.3d 36 [internal quotation marks omitted]; see People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 ; Guidelines at 5), the defendant failed to demonstrate that his age at the time of the SORA hearing, 53 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense (see People v. Khan, 182 A.D.3d 613, 614, 120 N.Y.S.3d 795 ; People v. Sawyer, 169 A.D.3d 840, 840–841, 91 N.Y.S.3d 889 ; People v. Santiago, 137 A.D.3d 762, 765, 26 N.Y.S.3d 339 ). Moreover, the defendant's prison record, efforts at self-improvement, and plan for release were adequately taken into account by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d at 853, 994 N.Y.S.2d 1, 18 N.E.3d 701 ) and do not warrant a finding that his risk of reoffense has been reduced at this time (cf. People v. Davis, 179 A.D.3d 183, 190–192, 115 N.Y.S.3d 350 ).
Accordingly, we agree with the Supreme Court's determination to deny the defendant's application for a downward departure from his presumptive risk level and to designate him a level three sex offender.
AUSTIN, J.P., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.