People v. Clark

222 A.D.3d 891

199 N.Y.S.3d 717 (Mem)

PEOPLE of State of New York, respondent,

v.Jonathan CLARK, appellant.

2019–03580

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

Submitted—October 20, 2023

December 20, 2023

Twyla Carter, New York, NY (Natalie Rea of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O'Boyle of counsel; Sarah Coon on the brief), for respondent.

FRANCESCA E. CONNOLLY, J.P., LARA J. GENOVESI, BARRY E. WARHIT, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Kenneth C. Holder, 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 affirmed, without costs or disbursements.

The defendant was convicted, upon his plea of guilty, of attempted rape in the first degree. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 95 points, denied his application for a downward departure to level one, and designated him a level two sex offender. The defendant appeals.

A defendant seeking a downward departure from a 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]). If the defendant makes that two-fold 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. Felton, 175 A.D.3d 734, 735, 105 N.Y.S.3d 301 ).

Here, the defendant failed to demonstrate that the assessment of points under risk factor 9 for a prior violent felony conviction resulted in an overassessment of his risk level (see People v. Henson...