People v. Harris

186 A.D.3d 879

127 N.Y.S.3d 772 (Mem)

PEOPLE of State of New York, Respondent,

v.Robert HARRIS, Appellant.

2019–06969

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

Submitted—June 3, 2020

August 26, 2020

Frank T. Kelly, Kew Gardens, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and William H. Branigan of counsel; Victoria Randall on the brief), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Leslie G. Leach, J.), dated May 21, 2019, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

At a hearing pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA), the defendant was assessed a total of 90 points, thereby presumptively classifying him as a level two sex offender. The People argued, among other things, that the Supreme Court should upwardly depart from the presumptive risk level to risk level three. The court granted the People's application for an upward departure based upon, inter alia, evidence that the victim suffered from physical and mental disabilities. The defendant appeals.

An aggravating factor that may support an upward departure from an offender's presumptive risk level "is one which tends to establish a higher likelihood of reoffense or danger to the community ... than the presumptive risk level" calculated on the risk assessment instrument ( People v. Wyatt , 89 A.D.3d 112, 121, 931 N.Y.S.2d 85 ; see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). When the People seek an upward departure "they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the risk assessment instrument, and prove the facts in support of the aggravating factor by clear and convincing evidence" ( People v. Ragabi , 150 A.D.3d 1161, 1161, 52 N.Y.S.3d 655 ; see People v. Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). "Once this burden is satisfied, the court may, in its discretion, choose to upwardly depart if the factor indicates that the point score on the risk assessment instrument has resulted in an underassessment of the offender's actual risk to the public" ( People v. Ragabi , 150 A.D.3d at 1161, 52 N.Y.S.3d 655 ; see People v. Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. DeDona , 102 A.D.3d 58, 68, 954 N.Y.S.2d 541 ; People v. Wyatt , 89 A.D.3d at 121, 123, 931 N.Y.S.2d 85 ).

We agree with the Supreme Court's determination that the People presented clear and convincing evidence of an aggravating factor not adequately taken into account by the SORA Guidelines (see SORA: Risk Assessment Guidelines and Commentary [2006] ), namely, that the victim suffered from both...