Opinion
2021-03950
06-17-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHRISTOPHER J. WEBER, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
Appeal from an order of the Monroe County Court (Vincent M. Dinolfo, J.), entered December 20, 2019. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). On a prior appeal, we reversed an order determining that defendant was a level three risk, concluding that County Court erred in assessing points for the use of forcible compulsion (People v Weber, 176 A.D.3d 1631, 1631-1632 [4th Dept 2019]). Although we vacated the risk level determination, we also remitted the matter to County Court" 'for further proceedings to determine whether an upward departure from defendant's presumptive risk level [was] warranted'" (id. at 1632). Defendant now appeals from an order that granted the People's request for an upward departure and again classified him as a level three sex offender.
Contrary to defendant's initial contention, the court did not err in considering the People's request for an upward departure. We remitted the matter for such a determination (id.), and it" 'is well settled that a trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith'" (Wiener v Wiener, 10 A.D.3d 362, 363 [2d Dept 2004]; see e.g. People v Dennis, 148 A.D.3d 927, 928 [2d Dept 2017]; People v Garcia, 145 A.D.3d 1032, 1033 [2d Dept 2016]). Moreover, although the People did not request such a departure during the original SORA proceeding, there was no reason for them to do so inasmuch as the court had classified defendant as a level three risk based upon the presumptive risk level yielded by the score on his risk assessment instrument (see People v Swain, 46 A.D.3d 1157, 1159 [3d Dept 2007]; cf. People v Bryant, 187 A.D.3d 1657, 1659 [4th Dept 2020]; see generally People v Brown, 148 A.D.3d 1705, 1707 [4th Dept 2017]).
Contrary to defendant's further contention, the court did not err in granting an upward departure. It is well settled that "[a] court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[, ]... [the court determines that] there exists an aggravating... factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" (People v Abraham, 39 A.D.3d 1208, 1209 [4th Dept 2007] [internal quotation marks omitted]; see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]), and the People bear the burden of establishing such a factor by clear and convincing evidence (see People v Seabolt, 148 A.D.3d 1650, 1650 [4th Dept 2017]; see generally Gillotti, 23 N.Y.3d at 861-862). Here, the court found that defendant "was unsuccessful on interim probation" inasmuch as he committed unrelated sexual assaults while on probation and was eventually adjudicated a youthful offender after pleading guilty to charges resulting from those assaults. The events underlying those offenses "were 'not adequately taken into consideration by the risk assessment guidelines and [were] properly considered as justification for the upward departure'" (People v Castaneda, 173 A.D.3d 1791, 1793 [4th Dept 2019], lv denied 34 N.Y.3d 929 [2019], lv denied 34 N.Y.3d 1126 [2020]; see also People v Mangan, 174 A.D.3d 1337, 1338 [4th Dept 2019], lv denied 34 N.Y.3d 905 [2019]).