Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Kyle J. WEBSTER, Defendant-Appellant.
HAYDEN M. DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Livingston County Court (Kevin Van Allen, J.), entered November 28, 2022. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
HAYDEN M. DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, 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 three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court erred in applying a presumptive override as recommended by the Board of Examiners of Sex Offenders (Board) in its risk assessment instrument (RAI) and that, alternatively, he is entitled to a downward departure to a level two risk. We affirm.
[1–4] "[T]o determine an offender’s risk level, the Board provides the court with a[n RAI] that assigns numerical values to various risk factors in accordance with the SORA Risk Assessment Guidelines and Commentary, resulting in an aggregate score that presumptively places an offender in a particular risk level" (People v. Weber, 40 N.Y.3d 206, 210, 196 N.Y.S.3d 352, 218 N.E.3d 688 [2023]; see Correction Law § 168-1; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [Guidelines]; see also People v. Francis, 30 N.Y.3d 737, 743-744, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018]). "An offender may also be subject to an automatic override to a higher [presumptive] risk level than allotted by the point score" (People v. Worley, 40 N.Y.3d 129, 132 n 1, 194 N.Y.S.3d 743, 215 N.E.3d 1184 [2023]; see Guidelines at 3-4; see also People v. Mingo, 12 N.Y.3d 563, 568 n 2, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]; People v. Johnson, 11 N.Y.3d 416, 418, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008]). "The risk level calculated from aggregating the risk factors and from applying the overrides is ‘presumptive’ because the Board or court may depart from it if special circumstances warrant" (Guidelines at 4). Consequently, "[e]ither party to a SORA proceeding may request that the court depart from the presumptive risk level based on aggravating or mitigating factors ‘of a kind or to a degree not adequately taken into account by the [G]uidelines’ " (Worley, 40 N.Y.3d at 132 n 1, 194 N.Y.S.3d 743, 215 N.E.3d 1184, quoting People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]; see Guidelines at 4-5). "Given the sequential structure of the departure process[,] … a SORA court cannot assess a departure request until an offender’s presumptive risk level has been determined" (Weber, 40 N.Y.3d at 215, 196 N.Y.S.3d 352, 218 N.E.3d 688). Indeed, "both the Guidelines and [SORA] jurisprudence make clear that the presumptive risk level is first determined through application of the Guidelines and the RAI— whether through allocation of points or a presumptive override to level three—and is the starting point for the departure analysis" thereafter conducted under the framework set forth in Gillotti (id. at 215 n 6, 196 N.Y.S.3d 352, 218 N.E.3d 688). SORA requires a court making a risk level determination to "render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based" (Correction Law § 168-n [3]), including its determination with respect to a request for a departure from the presumptive risk level (see e.g. People v. Snyder, 218 A.D.3d 1356, 1356, 193 N.Y.S.3d 573 [4th Dept. 2023]; People v. Dean, 169 A.D.3d 1414, 1415, 91 N.Y.S.3d 651 [4th Dept. 2019]).
[5] Here, as defendant correctly concedes, his contention that the court erred in applying the presumptive override based on his prior felony conviction for a sex crime (see Guidelines at 3-4) is not preserved for our review inasmuch as defendant’s "objection to the [application of the override] at the SORA hearing was made on a different ground than the … ground[s] he raises on appeal" (People v. Leach, 158 A.D.3d 1240, 1240, 70 N.Y.S.3d 734 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013055 [2018] [internal quo- tation marks omitted]; see People v. Ratcliff, 53 A.D.3d 1110, 1110, 862 N.Y.S.2d 686 [4th Dept. 2008], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084 [2008]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice, (see generally People v. Roman, 179 A.D.3d 1455, 1455-1456, 114 N.Y.S.3d 911 [4th Dept. 2020], lv denied 35N.Y.3d 907, 2020 WL 3097077 [2020]).
[6] Next, although we agree with defendant that the court failed to address his request for a downward departure from his presumptive risk level, we conclude that "[the] omission by the court does not require remittal because the record is; sufficient for us to make our own findings of fact and conclusions of law with respect to defendant’s request" (People v. Augsburg, 156 A.D.3d 1487, 1487, 67 N.Y.S.3d 367 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1527815 [2018]; see Snyder, 218 A.D.3d at 1356-1357, 193 N.Y.S.3d 573; People v. Simmons, 204 A.D.3d 1445, 1446, 165 N.Y.S.3d 804 [4th Dept. 2022], lv denied 38 N.Y.3d 912, 2022 WL 2838346 [2022]).
[7] Defendant contends that he is entitled to a downward departure to a level two risk based on his purportedly exceptional response to both sex offender and mental health treatment. "[W]hile an offender’s response to treatment, ‘if exceptional’ …, may constitute a mitigating factor to serve as the basis for a downward departure" (People v. Scott, 186 A.D.3d 1052, 1054, 128 N.Y.S.3d 763 [4th Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878405 [2020], quoting Guidelines at 17), we conclude that, here, defendant failed to prove by the requisite preponderance of the evidence (see Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701) that his response to treatment was exceptional (see People v. Antonetti, 188 A.D.3d 1630, 1631, 134 N.Y.S.3d 601 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1217106 [2021]; Scott, 186 A.D.3d at 1054, 128 N.Y.S.3d 763; People v. June, 150 A.D.3d 1701, 1702, 54 N.Y.S.3d 253 [4th Dept. 2017]). Inasmuch as defendant failed to prove the existence of an appropriate mitigating factor, we lack the discretion to order a downward departure (see People v. Loughlin, 145 A.D.3d 1426, 1428, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719017 [2017]; People v. Johnson, 120 A.D.3d 1542, 1542, 993 N.Y.S.2d 208 [4th Dept. 2014], lv denied 24 N.Y.3d 910, 2014 WL 6609035 [2014]; see generally Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1,18 N.E.3d 701).