People v. Gentile

206 N.Y.S.3d 116

224 A.D.3d 787

PEOPLE of State of New York, respondent,

v.Joseph GENTILE, appellant.

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

Submitted—January 12, 2024

February 14, 2024

Patricia Pazner, New York, NY (Tara Kumar of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Danielle S. Fenn, and Katira D. Campos of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, JANICE A. TAYLOR, CARL J. LANDICINO, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), dated April 6, 2021, as amended May 25, 2021, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order, as amended, is affirmed, without costs or disbursements.

The defendant was convicted, after a jury trial, of, inter alia, rape in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant a total of 70 points, resulting in his presumptive designation as a level one sex offender. The court then granted the People’s application for an upward departure from the presumptive risk level and designated the defendant a level two sex offender. The defendant appeals.

[1–3] "Where the People seek an upward departure, they must demonstrate that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] guidelines. The People must prove the facts in support of the aggravating factor by clear and convincing evidence" (People v. Burkhardt, 215 A.D.3d 696, 697, 187 N.Y.S.3d 269 [citations and internal quotation marks omitted]; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). "[O]nce this burden is satisfied, the SORA court may, in its discretion, choose to upwardly depart if the factor indicates that the point score on the risk assessment has resulted in an underassessment of the offender’s actual risk to the public" (People v. Wilkerson, 214 A.D.3d 683, 684, 184 N.Y.S.3d 387 [internal quotation marks omitted]; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

[4] Here, contrary to the defendant’s contention, the People demonstrated, by clear and convincing evidence (see Correction Law § 168–n[3]; People v. Bamugo, 214 A.D.3d 743, 744, 185 N.Y.S.3d 243), the existence of an aggravating factor not adequately taken into account by the Guidelines that tended to establish a higher likelihood of reoffense or danger to the community (see generally People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701), namely, the defendant’s subsequent convictions following the underlying sex offense (see People v. Bamugo, 214 A.D.3d at 744, 185 N.Y.S.3d 243; People v. Thurmond, 210 A.D.3d 1022, 1025, 179 N.Y.S.3d 279; People v. Amorin, 164...