People v. Davis

2023 NY Slip Op 03367

The People of the State of New York, Respondent, v. Tiquan Davis, Appellant.

Nos. 2021-02871, 2021-02872

Supreme Court of New York, Second Department

June 21, 2023

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Darci Siegel on the brief), for respondent.

Steven A. Feldman, Manhasset, NY, for Appellant.

BETSY BARROS, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, BARRY E WARHIT, JJ.

DECISION & ORDER

Appeals by the defendant from two orders of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), both dated April 21, 2021 which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the orders are affirmed, without costs or disbursements.

The defendant was convicted, after separate jury trials, of rape in the first degree and other offenses under Indictment No 5511/94, and rape in the first degree and other offenses under Indictment No. 11291/94. After a hearing relating to both indictments pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive risk level three designation, the Supreme Court designated the defendant a level three sex offender with respect to each indictment.

"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 [SORA] 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; see People v Gillotti, 23 N.Y.3d 841, 861; People v Wyatt 89 A.D.3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). If the offender 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 offender's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 N.Y.3d at 861; People v Bigelow, 175 A.D.3d 1443).

Here the defendant failed to demonstrate that his age at the time of the SORA hearing, 48 years old, constituted an appropriate mitigating factor (see People v Corrica, 203 A.D.3d 1086, 1087; People v Porciello, 193 A.D.3d 993; People v Rivas, 185 A.D.3d 740). Moreover, contrary to the defendant's contention, the support of his family upon his release from prison is adequately taken into account by the Guidelines (see People v Felton, 175 A.D.3d 734, 735; People v Adams, 174...