People v. Cousin

209 A.D.3d 1047

177 N.Y.S.3d 151

PEOPLE of State of New York, respondent,

v.Herbert COUSIN, appellant.

2021–06337

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

Submitted—October 3, 2022

October 26, 2022

Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Grazia DiVincenzo and Glenn Green of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated July 21, 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.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 90 points, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender (see id. § 168–n). The defendant appeals.

The question of whether the defendant was properly assessed 10 points under risk factor 13 for conduct while confined is academic since, even if 10 points were deducted from his risk assessment, the defendant would still be assessed 80 points, rendering him presumptively a level two sex offender (see People v. Guerro–Bueso, 203 A.D.3d 1184, 163 N.Y.S.3d 422 ; People v. Leung, 191 A.D.3d 1023, 1023–1024, 142 N.Y.S.3d 95 ; People v. Grubert, 160 A.D.3d 993, 994, 72 N.Y.S.3d 466 ).

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 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 ).

Most of the circumstances on which the defendant bases his contentions regarding a downward departure were adequately taken into account by the Guidelines, including his release environment, employment prospects, and acceptance of responsibility (see People v. Torres, 205 A.D.3d 940, 166 N.Y.S.3d 601 ; People v. Joe, 203 A.D.3d 1187, 163 N.Y.S.3d 453 ; People v. Pace, 188 A.D.3d 732, 734, 133 N.Y.S.3d 652 ; People v. Hamdam, 178 A.D.3d 1098, 1099, 112 N.Y.S.3d 550 ). Moreover, although an exceptional response to treatment may qualify as a mitigating factor that warrants a downward departure (see People v. Migliaccio, 90 A.D.3d 879, 880, 935 N.Y.S.2d 603 ), here, the defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional (see People v. Emery, 204 A.D.3d 944, 945, 164 N.Y.S.3d 888 ; People v. Roelofsen, 195 A.D.3d 962, 963, 146 N.Y.S.3d 532 ; People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ).

The defendant also cited community and family support as a mitigating factor, and submitted letters from family members and friends which state that they would support him upon his release. The defendant failed to demonstrate how having support from the community or his family established a lower likelihood of reoffense or danger to the community. Thus, the defendant failed to establish an appropriate mitigating factor which was otherwise not adequately taken into...