People v. Disla

186 A.D.3d 755

127 N.Y.S.3d 336 (Mem)

PEOPLE of State of New York, Respondent,

v.Rafael DISLA, Appellant.

2017–08742

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

Submitted - February 24, 2020

August 19, 2020

Paul Skip Laisure, New York, NY (Anna Kou of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Roni C. Piplani, and Michelle M. Yong of counsel), for respondent.

SHERI S. ROMAN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Gene Lopez, J.), dated July 28, 2017, 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 in Virginia, upon his plea of guilty, of use of communications systems to facilitate certain offenses involving children (see Va Code § 18.2–374.3 ), and possession, reproduction, distribution, solicitation, and facilitation of child pornography (see Va Code § 18.2–374.1:1 ). The defendant subsequently established residence in Queens County, New York, and, as required, registered as a sex offender. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the defendant was assessed 80 points, placing him within the range for a presumptive designation as a level two sex offender, and his application for a downward departure was denied.

We agree with the Supreme Court's assessment of 30 points under risk factor 3, for number of victims, and 20 points under risk factor 7, for a crime directed at strangers (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Waldman, 178 A.D.3d 1107, 1107, 112 N.Y.S.3d 554 ; People v. Kent, 175 A.D.3d 561, 562–563, 105 N.Y.S.3d 108 ; People v. Dubeau, 174 A.D.3d 748, 749, 102 N.Y.S.3d 276 ; People v. Rivas, 173 A.D.3d 786, 787, 99 N.Y.S.3d 678 ; People v. Eiss, 158 A.D.3d 905, 906, 70 N.Y.S.3d 604 ).

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 [SORA] 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 SORA: 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 ).

Here, the defendant failed to demonstrate that a downward departure was warranted. Although the defendant provided evidence that he voluntarily participated in various sex offender treatment programs, he failed to establish by a preponderance of the evidence that his response to those treatments was exceptional (see People v. Robinson, 179 A.D.3d 1104, 1105, 114 N.Y.S.3d 676 ; People v. Jimenez, 178 A.D.3d 1099, 1099, 115 N.Y.S.3d 86 ; People v. Bigelow, 175 A.D.3d 1443, 1444, 107 N.Y.S.3d 406 ).

The defendant's contention that he was entitled to a downward departure based upon his familial support, employment, and lack of a prior criminal history is unpreserved for appellate review as he failed to raise those factors as grounds for a downward departure at the SORA hearing (see People v. Wilcox, 178 A.D.3d 1107, 1109, 117 N.Y.S.3d 310 ; People v. Bigelow, 175 A.D.3d at 1444, 107 N.Y.S.3d 406 ; People v. Mosqueda, 172 A.D.3d 1412, 1413, 99 N.Y.S.3d 636 ). In any event, the...