People v. Crawford

205 A.D.3d 828

165 N.Y.S.3d 868 (Mem)

PEOPLE of State of New York, respondent,

v.Michael CRAWFORD, appellant.

2021–05919

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

Submitted—February 22, 2022

May 11, 2022

Steven P. Goldenberg, Chappaqua, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Benjamin N. Costanza on the brief), for respondent.

ANGELA G. IANNACCI, J.P., SHERI S. ROMAN, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Steven W. Paynter, J.), dated July 6, 2021, 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 this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 110 points on the risk assessment instrument, denied his request for a downward departure from his presumptive risk level, and designated him a level three sex offender. On appeal, the defendant challenges the assessment of 15 points under risk factor 14 for release without supervision and the denial of his request for a downward departure.

"In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence" ( People v. Levy, 192 A.D.3d 928, 929, 140 N.Y.S.3d 721, citing Correction Law § 168–n[3] ; see People v. Guadeloupe, 173 A.D.3d 910, 911, 100 N.Y.S.3d 384 ). " ‘In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay’ " ( People v. Vasquez, 189 A.D.3d 1480, 1481, 134 N.Y.S.3d 765, quoting People v. Luna, 187 A.D.3d 805, 806, 130 N.Y.S.3d 323 [internal quotation marks omitted]).

Contrary to the defendant's contention, the Supreme Court properly assessed 15 points under risk factor 14. The record demonstrates that the defendant was released from incarceration in Canada and returned to New York following his deportation without being under supervision as contemplated by SORA (see People v. Ramos, 179 A.D.3d 850, 116 N.Y.S.3d 347 ).

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" ( People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).

Contrary to the defendant's contention, he failed...