People v. Cotugno

206 N.Y.S.3d 111

224 A.D.3d 786

PEOPLE of State of New York, respondent,

v.Paul COTUGNO, appellant.

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

Submitted—December 8, 2023

February 14, 2024

N. Scott Banks, Hempstead, NY (Tammy Feman and Dori Cohen of counsel), for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Autumn Hughes and Matthew C. Frankel of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. Schwartz, J.), dated October 26, 2021, 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.

At a hearing to designate the defendant’s risk level pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the defendant argued against an assessment of points under risk factor 12 (acceptance of responsibility) and sought a downward departure from his presumptive level two designation. The Supreme Court denied the defendant’s application for a downward departure and designated him a level two sex offender.

[1] Contrary to the defendant’s contention, the People presented clear and convincing evidence that he did not genuinely accept responsibility for his conduct (see People v. Gonzalez, 194 A.D.3d 1083, 1083, 148 N.Y.S.3d 497; People v. Berdejo, 192 A.D.3d 923, 924, 140 N.Y.S.3d 733; People v. Fields, 186 A.D.3d 1541, 1541, 129 N.Y.S.3d 512). In particular, although the defendant initially admitted his guilt to the police and pleaded guilty, the People presented evidence that the defendant thereafter minimized his culpability, including to the Department of Probation and when interviewed for an "Adult Psychosexual Risk Evaluation." Under these circumstances, the Supreme Court properly assessed the defendant 10 points under risk factor 12 for his failure to take responsibility for his conduct (see People v. Gonzalez, 194 A.D.3d at 1083, 148 N.Y.S.3d 497; People v. Berdejo, 192 A.D.3d at 924, 140 N.Y.S.3d 733).

[2, 3] "An offender 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 not otherwise taken into account by the Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [h...