People v. Glosque

201 A.D.3d 823

157 N.Y.S.3d 392 (Mem)

PEOPLE of State of New York, respondent,

v.Michael GLOSQUE, appellant.

2020–09758

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

Submitted—December 6, 2021

January 19, 2022

Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel), for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, SHERI S. ROMAN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated October 28, 2020, 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.

Under risk factor 5 of the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines), 30 points are assessed if the victim was aged 10 or less, and 20 points are assessed if the victim was aged 11 through 16 (see Guidelines at 11). At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), "the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence" ( People v. Howard, 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 ; see Correction Law § 168–n[3] ; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; People v. Lopez, 192 A.D.3d 1050, 1050–1051, 141 N.Y.S.3d 314 ). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, and any relevant materials and evidence submitted by the parties, including reliable hearsay evidence, which may come from, among other documents, evaluative reports completed by the supervising probation officer, or case summaries prepared by the Board of Examiners of Sex Offenders" ( People v. Lopez, 192 A.D.3d at 1051, 141 N.Y.S.3d 314 [internal quotation marks omitted]; see Guidelines at 5; People v. Mingo, 12 N.Y.3d at 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; People v. Welch, 126 A.D.3d 773, 773, 5 N.Y.S.3d 257 ).

Here, contrary to the defendant's contention, the People established by clear and convincing evidence that at least one of the victims depicted in the subject pornographic images was 10 years old or less, such that the defendant was properly assessed 30 points under risk factor 5. The criminal investigator employed by the District Attorney who recovered child pornography files from the defendant's computer estimated the children's ages in 10 of the images to be 10 years old or younger, and the presentence investigation report reflects that 2 of those 10 images were of female children between the ages of 10 and 12 years old. This evidence was also corroborated by those 10 images, which were introduced into evidence at the SORA hearing and viewed by the Supreme Court in camera (see People v. Brown, 190 A.D.3d 1120, 140 N.Y.S.3d 303 ; People v. Kopstein, 186 A.D.3d 757, 126 N.Y.S.3d 920 ; see also People v. Mingo, 12 N.Y.3d at 575, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; cf. People v. Spratley, 175 A.D.3d 962, 105 N.Y.S.3d 686 ).

Moreover, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level of two to risk level one. The defendant failed to demonstrate by a preponderance of the evidence that the imposition of points under risk factors 3 and 7 resulted in an overassessment of his risk to public safety (see People v....