People v. Gonzalez

194 A.D.3d 1083

148 N.Y.S.3d 497

PEOPLE of State of New York, respondent,

v.Jose GONZALEZ, appellant.

2017–06751

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

Submitted—April 21, 2021

May 26, 2021

N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Argun M. Ulgen of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Rebecca L. Abensur and Andrea M. DiGregorio of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), dated June 2, 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.

After a hearing to determine the defendant's risk level designation pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), at which the defendant argued against an assessment of points under risk factor 12 (acceptance of responsibility) and sought a downward departure from his presumptive risk level two designation, the Supreme Court designated the defendant a level two sex offender.

Contrary to the defendant's contention, the People presented clear and convincing evidence that he did not genuinely accept responsibility for his conduct (see People v. Berdejo , 192 A.D.3d 923, 140 N.Y.S.3d 733 ; People v. Fields , 186 A.D.3d 1541, 129 N.Y.S.3d 512 ; People v. Fonteboa , 149 A.D.3d 880, 49 N.Y.S.3d 911 ). Although the defendant pleaded guilty, the People presented evidence of statements he made during his interview with the Department of Probation, and recounted in the presentence investigation report (see People v. Mingo , 12 N.Y.3d 563, 572–573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ), indicating that he denied his culpability by asserting that he was told to plead guilty to avoid a longer sentence. During the same interview, he minimized his culpability by claiming that the offense may have happened but he lacked a recollection of the events due to being under the influence of alcohol and cocaine. Under these circumstances, the Supreme Court properly assessed 10 points under risk factor 12 for the defendant ‘s failure to take responsibility for his conduct (see People v. Berdejo , 192 A.D.3d at 924, 140 N.Y.S.3d 733 ).

The defendant's contention that the Supreme Court erred in assessing 15 points under risk factor 14 (release without supervision) is unpreserved for appellate review, as he never objected to the assessment of points under that risk factor during the SORA hearing (see People v. Avalo, 186 A.D.3d 754, 127 N.Y.S.3d 337 ). In any event, this contention is without merit (see People v. Vasquez, 189 A.D.3d 1480, 1481, 134 N.Y.S.3d 765 ).

Finally, the Supreme Court providently exercised its discretion in denying the defendant's request for a downward departure from his presumptive risk level two designation. "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: Risk Assessment Guidelines and Commentary at 4 (2006) (hereinafter Guidelines)]; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ " ( People v. Boutin, 172 A.D.3d 1253, 1254, 99 N.Y.S.3d 417, quoting People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Zamora, 186 A.D.3d 885, 127 N.Y.S.3d 770 ). The defendant must prove the existence of that factor by a preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). "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" ( People v. Ramos, 186 A.D.3d 511, 511, 126 N.Y.S.3d 381 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d...