People v. Cartiglia

169 A.D.3d 725

92 N.Y.S.3d 121

PEOPLE of State of New York, Respondent,

v.Joel CARTIGLIA, Appellant.

2016–06119

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

Submitted—October 26, 2018

February 6, 2019

Janet E. Sabel, New York, N.Y. (Andrea Yacka–Bible of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie Kleinbart and Anne Grady of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), dated June 8, 2016, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted, upon his plea of guilty, of receipt of child pornography. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the defendant was designated a level two sex offender based on the assessment of a total of 80 points on the risk assessment instrument, under risk factors 3 (number of victims), 5 (age of victims), and 7 (victims were strangers).

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 ).

The defendant failed to demonstrate that he was entitled to a downward departure due to mitigating circumstances. One of the factors he relied upon had already been taken into account by the Guidelines (see Guidelines at 7; People v. Sakowski, 149 A.D.3d 882, 883, 49 N.Y.S.3d 913 ). Furthermore, although an offender's age upon release (see People v. Alvarez, 153 A.D.3d 645, 57 N.Y.S.3d 405 ; People v. Santiago, 137 A.D.3d 762, 764–765, 26 N.Y.S.3d 339 ) and an offender's exceptional response to treatment (see People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ) may constitute grounds for a downward departure, the defendant failed to establish the facts in support of these grounds by a preponderance of the evidence (see People v. Whitney, 163 A.D.3d 1013, 81 N.Y.S.3d 593 ; People v. Ramirez, 163 A.D.3d 1012, 81 N.Y.S.3d 576 ; People v. Rodriguez, 159 A.D.3d 842, 69 N.Y.S.3d 825 ; People v. Benoit, 145 A.D.3d 687, 43 N.Y.S.3d 406 ; People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ).

Finally, although in some cases involving child pornography the assessment of points under risk factors 3 and 7 may result in an overassessment of a defendant's risk to public safety (see People v. Gillotti, 23 N.Y.3d at 858–860, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 ), a downward departure is not warranted under the circumstances of this case (see People v. Whitney, 163 A.D.3d at 1014, 81 N.Y.S.3d 593 ; People v. Goldman, 150 A.D.3d 905, 907, 55 N.Y.S.3d 78 ; People v. Rossano, 140 A.D.3d at 1043, 35 N.Y.S.3d 364 ). Significantly, the defendant was found in...