People v. Green

216 N.Y.S.3d 227

229 A.D.3d 814

PEOPLE of State of New York, respondent,

v.Hikeem GREEN, appellant.

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

Submitted—April 19, 2024

July 31, 2024

Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O’Boyle of counsel; Christopher Moore on the brief), for respondent.

BETSY BARROS, J.P., JOSEPH J. MALTESE, BARRY E. WARHIT, CARL J. LANDICINO, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Michael B. Aloise, J.), dated July 18, 2023, which, after a hearing upon remittitur from this Court (see People v. Green, 216 A.D.3d 1115,189 N.Y.S.3d 698), designated him a level three 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 (Correction Law art 6–C; hereinafter SORA), the Supreme Court, upon denying the defendant’s request for a downward departure from his presumptive risk level, designated him a level three sex offender (see id. § 168-n). The defendant appeals.

[1] The Supreme Court failed to set forth findings and conclusions of law, as mandated by Correction Law § 168–n(3). However, remittal is not required since the record in this case is sufficient for this Court to make its own findings of fact and conclusions of law (see People v. Hernandez, 213 A.D.3d 705, 706–707, 182 N.Y.S.3d 282; People v. McDaniel, 189 A.D.3d 1279, 1279, 134 N.Y.S.3d 210).

[2, 3] 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 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; 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 (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).

[4, 5] Although lengthy periods of time during which the defendant has been at liberty after the offense without reoffending are not taken into account by the Guidelines or the risk assessment instrument (see People v. Sotomayer, 143 A.D.3d 686, 687, 38 N.Y.S.3d 271; People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267), here, the defendant failed to establish by a preponderance of the evidence that, in the 3½-year period he was at liberty prior to the 2023 SORA hearing, he led an exemplary life such that he was entitled to a downward departure from the presumptive risk level (see People v. Sprinkler, 162 A.D.3d 802, 803, 79 N.Y.S.3d 232; cf. People v. Abdullah, 31 A.D.3d at 516, 818 N.Y.S.2d 267).

[6, 7] Moreover, while a defendant’s response to sex offender treatment may qualify as a ground for a downward departure where the response is "exceptional," the defendant failed to demonstrate by a preponderance of the evidence that his " ‘response to treatment, while positive, was exceptional’" (People v. Smith, 194 A.D.3d 767, 768, 143 N.Y.S.3d 560, quoting People v. Diaz, 180 A.D.3d 817, 818, 116 N.Y.S.3d 81; see People v. Abdullah, 210 A.D.3d 704, 706, 178 N.Y.S.3d 94).

[8, 9] Contrary to the defendant’s contention, his gainful employment and support of his family and friends were adequately taken into account by the Guidelines (see People v. Haims, 203 A.D.3d 1184, 1186, 163...