Opinion
2018–08264
04-06-2022
PEOPLE of State of New York, respondent, v. Robert WILLIAMS, appellant.
Patricia Pazner, New York, NY (Benjamin Welikson of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Emily Aguggia on the brief), for respondent.
Patricia Pazner, New York, NY (Benjamin Welikson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Emily Aguggia on the brief), for respondent.
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, LARA J. GENOVESI, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Queens County (Steven W. Paynter, J.), dated June 13, 2018, 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.
Contrary to the defendant's contention, when assessing the defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA), the Supreme Court properly assessed 15 points under risk factor 11. The People presented clear and convincing evidence that the defendant abused alcohol at the time of his first offense (see People v. Palmer, 20 N.Y.3d 373, 379, 960 N.Y.S.2d 719, 984 N.E.2d 917 ; People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351 ).
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 contends that his years at liberty without reoffense, participation in intensive sex offender therapy, strong family ties, and the totality of his circumstances constituted mitigating factors warranting a downward departure. "Although lengthy periods of time during which the defendant has been at liberty after the offense are not taken into account by the Guidelines or the Risk Assessment Instrument (hereinafter RAI)" ( People v. Sprinkler, 162 A.D.3d 802, 803, 79 N.Y.S.3d 232 ), the defendant, who had only been at liberty for approximately three years at the time of the SORA hearing, failed to establish by a preponderance of the evidence that this short period of time at liberty without reoffense demonstrated that the RAI overstated his risk of reoffense, or that he has led an exemplary life such that he was entitled to a downward departure from the presumptive risk level (see id. at 803, 79 N.Y.S.3d 232 ; cf. People v. Sotomayer, 143 A.D.3d 686, 687, 38 N.Y.S.3d 271 ; People v. Thompson, 34 A.D.3d 661, 662, 824 N.Y.S.2d 657 ; People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267 ). Additionally, although "a response to treatment may qualify as a ground for a downward departure where the response is exceptional" ( People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ), here, the defendant failed to establish, by a preponderance of the evidence, that his response to treatment was exceptional (see People v. Davis, 199 A.D.3d 1030, 1031–1032, 154 N.Y.S.3d 815 ; People v. Santiago, 137 A.D.3d at 764, 26 N.Y.S.3d 339 ). Further, the defendant's close family ties were adequately taken into account by the Guidelines (see People v. Adams, 174 A.D.3d 828, 829–830, 102 N.Y.S.3d 688 ). Finally, although "[r]ehabilitation on the basis of the totality of the record is a mitigating factor that is not taken into account by the Guidelines or the RAI" ( People v. Madison, 98 A.D.3d 573, 574, 949 N.Y.S.2d 701 ), here, the defendant failed to establish, by a preponderance of the evidence, that the totality of his circumstances warranted a downward departure (see People v. Sprinkler, 162 A.D.3d at 803, 79 N.Y.S.3d 232 ; People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Gonzalez, 138 A.D.3d 814, 815, 29 N.Y.S.3d 542 ).
Accordingly, the Supreme Court properly denied, after a hearing, the defendant's request for a downward departure and designated him a level 3 sex offender.
CONNOLLY, J.P., CHAMBERS, ROMAN and GENOVESI, JJ., concur.