People v. Edmee

183 A.D.3d 766

121 N.Y.S.3d 902 (Mem)

PEOPLE of State of New York, Respondent,

v.Gerdzer EDMEE, Appellant.

2018–13497

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

Submitted - December 5, 2019

May 13, 2020

Paul Skip Laisure, New York, N.Y. (Charity L. Brady and Martin B. Sawyer of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., SYLVIA O. HINDS–RADIX, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated October 31, 2018. The order, 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 (see Correction Law art 6–C; hereinafter SORA), the Board of Examiners of Sex Offenders assessed the defendant a total of 85 points, which if accepted by the Supreme Court, would make him a presumptive level two sex offender. Following a hearing, the court assessed the defendant a total of 95 points, including an additional 10 points under risk factor 12 for a failure to accept responsibility—still within the range for a presumptive designation as a level two sex offender. The court denied the defendant's application for a downward departure from his presumptive risk level, and designated him a level two sex offender. On appeal, the defendant challenges the assessment of 10 additional points under risk factor 12 and the denial of his application for a downward departure from his presumptive risk level.

The issue of whether the defendant was properly assessed additional points under risk factor 12 is academic, since the assessment of those additional points did not affect the defendant's presumptive risk level (see People v. Grubert, 160 A.D.3d 993, 72 N.Y.S.3d 466 ).

A defendant seeking a downward departure from a 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 factors 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 ).

We agree with the Supreme Court's determination to deny the defendant's application for a downward departure from his presumptive risk level. The defendant failed to satisfy his burden of establishing an exceptional response to sex offender treatment by a preponderance of the evidence (see People v. Souverain, 171 A.D.3d 1225, 99 N.Y.S.3d 59 ; People v. Artis, 162 A.D.3d 1081, 75...