People v. Glowinski

208 A.D.3d 1392

174 N.Y.S.3d 154

The PEOPLE of the State of New York, Respondent,

v.Raymond GLOWINSKI, Appellant.

530341

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

Calendar Date: August 18, 2022

Decided and Entered: September 1, 2022

Law Office of Wayne P. Smith, Schenectady (Wayne P. Smith of counsel), for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella III of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from an order of the County Court of Saratoga County (James A. Murphy III, J.), entered June 29, 2018, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In 2016, defendant was sentenced to a prison term of 2 to 6 years following his plea of guilty to the crime of promoting a sexual performance by a child. In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6–C) which, based upon a total score of 35 points, presumptively classified him as a risk level one sex offender; however, the Board recommended a departure to a risk level two sex offender based on various aggravating factors. The People prepared a risk assessment instrument that classified defendant as a risk level two sex offender with a score of 85 points. Following a hearing, County Court classified defendant as a risk level two sex offender with a total score of 85 and denied his request for a downward departure. Defendant appeals.

Initially, to the extent that defendant contends that County Court's order does not comply with the requirements of Correction Law § 168–n (3) because the order does not set forth in writing its findings of fact and conclusions of law on which the risk level classification is based, we note that remittal is not required as the court clearly set forth its findings and conclusions during the hearing in sufficient detail to permit intelligent review (see People v. Shook, 199 A.D.3d 1177, 1178, 156 N.Y.S.3d 595 [3d Dept. 2021] ; People v. Hoffman, 199 A.D.3d 1080, 1081, 155 N.Y.S.3d 480 [3d Dept. 2021] ). As to the merits, defendant contends that the assessment of points under risk factors 3 (number of victims) and 7 (stranger) resulted in an overestimation of his risk to public safety, and that mitigating factors – which he alleges the court failed to consider – warrant a downward departure to a risk level one classification. We disagree. Although the Court of Appeals has recognized in child pornography cases that an assessment of points under these two risk factors may result in an overassessment of an offender's risk level classification (see People v. Gillotti, 23 N.Y.3d 841, 860, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ), "it nevertheless remains within the discretion of County Court to impose points based upon these factors where the evidence permits, and any potential for overestimation of the risk of sexual recidivism may be addressed via the discretionary downward departure process" ( People v. Brown, 190 A.D.3d 1120, 1122–1123, 140 N.Y.S.3d 303 [3d Dept. 2021] ; see People v. Gillotti, 23 N.Y.3d at 860–861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). In seeking a downward departure, defendant bore the burden of "demonstrat[ing], by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v. Huether, 205 A.D.3d 1233, 1234, 167 N.Y.S.3d 650 [3d Dept. 2022] [internal quotation marks and citations omitted]; see People v. Holton, 193 A.D.3d 1212, 1213, 144 N.Y.S.3d 260 [3d Dept. 2021] ).

Defendant was assessed points for those two risk factors based upon the People demonstrating by clear and convincing evidence that defendant's cell phone, SD card and computer contained nearly 900 pornographic images and videos of children, some of which included toddlers, as well as an uploaded video of an adult male performing sexual acts on a female victim approximately four to eight years old. Defendant reported...