People v. Abdullah

210 A.D.3d 704

178 N.Y.S.3d 94

PEOPLE of State of New York, respondent,

v.John J. ABDULLAH, appellant.

2020–03136

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 4, 2022

November 2, 2022

Del Atwell, East Hampton, NY, for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Jonathan D. Estreich of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Chris Ann Kelley, J.), dated January 22, 2020, 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.

In 1980, the defendant sexually assaulted and murdered a 13–year–old girl in his neighborhood, stabbing her 23 times. After a jury trial, the defendant was convicted of two counts of murder in the second degree (intentional and felony murder), and sexual abuse in the first degree. The defendant was sentenced to indeterminate terms of imprisonment of 25 years to life on each of the convictions of murder in the second degree, and to an indeterminate term of imprisonment of 2? to 7 years on the conviction of sexual abuse in the first degree, all to run concurrently. Prior to his release from prison, the County Court conducted a hearing pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA). The court assessed the defendant a total of 65 points, resulting in a presumptive risk level one designation, and then applied an automatic override to a presumptive risk level three designation on the basis that the defendant caused the victim's death (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]). The court denied the defendant's request for a downward departure and designated him a level three sex offender. The defendant appeals.

"The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three" ( People v. Lobello, 123 A.D.3d 993, 994, 999 N.Y.S.2d 179 ; see People v. Long, 129 A.D.3d 687, 687, 10 N.Y.S.3d 336 ). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" ( People v. Lobello, 123 A.D.3d at 994, 999 N.Y.S.2d 179 ; see Correction Law § 168–n[3] ). "Once the People have sustained this burden, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic’ " ( People v. Johnson, 135 A.D.3d 720, 720–721, 22 N.Y.S.3d 238, quoting People v. Gordon, 133 A.D.3d 835, 836, 20 N.Y.S.3d 165 ).

Contrary to the defendant's contention, the People sustained their burden of proving, by clear and convincing evidence, the applicability of the override for causing the death of the victim (see People v. Simmons, 170 A.D.3d 904, 904, 93 N.Y.S.3d 862 ; see also People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; People v. Gutierrez–Lucero, 103 A.D.3d 89, 98, 956 N.Y.S.2d 131 ). A court may, however, in its discretion depart from the presumptive risk level obtained pursuant to the automatic override where the circumstances warrant a departure, "although such departures are the exception, and not the rule" ( People v. Simmons, 170 A.D.3d at 904, 93 N.Y.S.3d 862 ; see People v. Johnson, 135 A.D.3d at 721, 22 N.Y.S.3d 238 ).

Contrary to the defendant's contention, the County Court properly denied his request for a downward departure from the presumptive risk level three designation (see People v. Barr, 205 A.D.3d 741, 743, 166 N.Y.S.3d 682 ; People v. Haims, 203 A.D.3d 1184, 163 N.Y.S.3d 443 ). 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 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 Guidelines at 4). If the defendant makes that twofold showing, the court "must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism" ( People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).

Here, the defendant failed to establish that a downward departure was warranted. Most of the alleged mitigating factors identified by the defendant, including his successful completion of rehabilitation and vocational programs, his positive disciplinary record while incarcerated, and his postrelease environment, are adequately taken into account by the Guidelines (see People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170 ; People v. Robinson, 145 A.D.3d 805, 806, 41 N.Y.S.3d 908 ; People v. Torres, 124 A.D.3d 744, 745–746, 998 N.Y.S.2d 464 ; People v. DeDona, 102 A.D.3d 58, 70–71, 954 N.Y.S.2d 541 ). While " ‘a defendant's response to [sex offender] treatment may qualify as a ground for a downward departure where the response is exceptional’ " ( People v. Del–Carmen, 186 A.D.3d 878, 879, 128 N.Y.S.3d 608, quoting People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561 ), the defendant failed to establish that his response to such treatment was exceptional (see People v. Del–Carmen, 186 A.D.3d at 879, 128 N.Y.S.3d 608 ; People v. Robinson, 179 A.D.3d 1104, 1105, 114 N.Y.S.3d 676 ; People v. Varvaro, 171 A.D.3d 958, 960, 95 N.Y.S.3d 593 ).

Further, although "advanced age" can be a basis for a downward departure (Guidelines at 5; see People v. Mitchell, 196 A.D.3d 516, 518, 146 N.Y.S.3d 851 ), ...