People v. Bevel

2023 NY Slip Op 51231(U)

The People of the State of New York, Respondent, v. Jeffrey Bevel, Appellant.

No. 2019-1632 RI C

Supreme Court of New York, Second Department

September 22, 2023

Unpublished Opinion

New York City Legal Aid Society (Jonathan R. Mccoy of counsel) for appellant.

Richmond County District Attorney (Thomas B. Litsky and George Adames of counsel), for respondent.

PRESENT:: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ

Appeal from an order of the Criminal Court of the City of New York Richmond County (Geriane Agrianno, J.), entered September 20 2019. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs.

At a Sex Offender Registration Act (SORA) hearing, the People presented the case summary of the Board of Examiners of Sex Offenders in support of the 115 points assessed against defendant in the risk assessment instrument (RAI). Defendant's attorney raised an objection to the 15 points assessed for drug and alcohol abuse, which points the court deducted under risk factor 9, leaving a total score of 100 points, placing defendant as a presumptive level two sex offender. Counsel requested a downward departure from the presumptive risk level. The Criminal Court denied defendant's request and designated defendant a level three sex offender based on an automatic override.

Defendant argues that the court should not have assessed 15 points under risk factor 14 because he was to be under supervision upon release from his incarceration on a felony conviction. Defendant did not raise this issue at the hearing and, as the issue is raised for the first time on appeal, it is not properly before this court (see People v Arocho, 82 A.D.3d 429 [2011]; People v Joe, 74 A.D.3d 404 [2010]).

Defendant further argues for a downward departure on the grounds that defendant had no disciplinary record while incarcerated, that defendant was to be supervised after release, and that defendant had a supportive family, vocational training and therapy.

Although in rendering its order, the Criminal Court did not set forth the "findings of fact and conclusions of law on which [its] determinations [were] based" (Correction Law § 168-n [3]), remittal is not required, as the record is sufficient for this court on appeal to make its own findings of fact and conclusions of law (see People v Finizio, 100 A.D.3d 977 [2012]; People v Harris, 93 A.D.3d 704 [2012]).

Even were we to reduce the total RAI score of 100 by the 15 points assessed under risk factor 14, leaving an assessment of 85 points, the score still remains at a level two sex offender. Moreover, under the circumstances presented, "the points assessed on the risk assessment instrument are irrelevant" since defendant was a presumptive level three sex offender pursuant to an automatic override for his felony conviction (see People v Hraklis, 214 A.D.3d 681, 682 [2023]; People v Guitard, 57 A.D.3d 751, 752 [2008]).

Courts apply three analytical steps to determine whether to order a downward departure (see People v Hatton, 72 Misc.3d 141 [A], 2021 NY Slip Op 50838[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). First, the defendant must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4-5; People v Gillotti, 23 N.Y.3d 841, 861-864 [2014]). Second, the defendant must prove the existence of those circumstances by a preponderance of the evidence (see Gillotti, 23 N.Y.3d at 861-864; People v Kohout, 145 A.D.3d 922, 923 [2016]; People v Santiago, 137 A.D.3d 762 [2016]). Third, if the defendant satisfies the foregoing, "the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (Gillotti, 23 N.Y.3d at 861). In exercising this discretion, the court must "determine whether the totality of the circumstances warrants a departure to avoid an over... assessment of the defendant's dangerousness and risk of sexual recidivism" (id.; see Kohout, 145 A.D.3d at 923).

Upon a review of the record, we find that the mitigating factors raised by defendant at the SORA hearing regarding supervision after release, and the lack of a disciplinary record while incarcerated, were already adequately taken into account in the RAI under risk factors 13 ...