People v. Brocato

188 A.D.3d 728

131 N.Y.S.3d 645 (Mem)

PEOPLE of State of New York, respondent,

v.Anthony BROCATO, appellant.

2019–04620

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

Submitted - October 21, 2020

November 04, 2020

Bennet Goodman, Bronxville, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated March 22, 2019, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, and the defendant is designated a level one sex offender.

In July of 2015, the defendant was convicted in Louisiana of two counts of felony carnal knowledge of a juvenile, which is committed when a person who is at least 17 years of age has sexual intercourse, "with consent," with a person who is 13 to 16 years of age, when the victim is not the spouse of the offender, and the difference between the age of the victim and the age of the offender is four years or greater ( La R.S. § 14:80 ). He was placed on one year of probation. The defendant committed the subject offenses when he was 22 years old and living in Louisiana. One night, while at a party in Louisiana, he engaged in sexual intercourse with the victims, aged 15 and 16, respectively. By the victims' own accounts, they initiated the encounter and were willing participants. The defendant became subject to New York State's Sex Offender Registration Act ( Correction Law § 168 et seq. ; hereinafter SORA) upon moving to New York in June 2017. In 2019, the Supreme Court conducted a SORA hearing and designated the defendant a level two sex offender, based upon an assessment of 90 points on the risk assessment instrument, declining to depart from the presumptive risk assessment level. The defendant appeals.

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 the 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 ).

"In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender's risk to...