People v. Brunjes

174 A.D.3d 747

102 N.Y.S.3d 468 (Mem)

People of STATE of New York, Respondent,

v.Andrew BRUNJES, Appellant.

2018–01985

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

Submitted - March 22, 2019

July 17, 2019

Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Kathleen Becker Langlan of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated February 1, 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.

In 2002, the defendant was convicted of burglary in the first degree, rape in the first degree, and two counts of sodomy in the first degree under Superior Court Information No. 1555–02, and rape in the first degree, rape in the third degree, assault in the second degree, robbery in the second degree, sexual abuse in the first degree, and endangering the welfare of a child under Indictment No. 2371–01 (see People v. Brunjes, 14 A.D.3d 619, 787 N.Y.S.2d 897 ). Prior to the defendant's release from prison, the County Court conducted a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA) and designated the defendant a level three sex offender. 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 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 over-assessment 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 contended that he identified two appropriate mitigating factors, namely, his purportedly exceptional response to sex offender treatment and drug and alcohol treatment programs and that his age at the time of his release from prison rendered him less likely to reoffend (see People v. Alvarez, 153 A.D.3d 645, 646, 57 N.Y.S.3d 405 ; People v. Santiago, 137 A.D.3d 762, 764, 26 N.Y.S.3d 339 ; People v. Shelton, 126 A.D.3d 959, 959–960, 6 N.Y.S.3d 121 ; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ; Guidelines at 5, 17). However, he did not establish the facts in support of the existence of either factor by a preponderance of the evidence (see People v. Ralph, 170 A.D.3d 900, 94 N.Y.S.3d 355 ; People v. Cartiglia, 169 A.D.3d 725, 92 N.Y.S.3d 121 ; People v. Wyatt...