People v. Hraklis

214 A.D.3d 681

182 N.Y.S.3d 916 (Mem)

PEOPLE of State of New York, respondent,

v.Morris HRAKLIS, appellant.

2020–07360

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

Submitted—October 26, 2022

March 1, 2023

Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Christopher Turk and Lauren Tan of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, HELEN VOUTSINAS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated August 13, 2020, 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.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 95 points on the risk assessment instrument, applied an automatic override based upon the defendant's prior conviction of a felony sex offense (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006] [hereinafter Guidelines]), and designated him a level three sex offender. On appeal, the defendant challenges the assessment of points under risk factors 12 and 14, and the denial of his application for a downward departure.

Contrary to the defendant's contention, the Supreme Court properly assessed 10 points under risk factor 12, as the People established, by clear and convincing evidence, that the defendant failed to accept responsibility for his actions (see People v. Gonzalez, 194 A.D.3d 1083, 148 N.Y.S.3d 497 ; People v. Berdejo, 192 A.D.3d 923, 924, 140 N.Y.S.3d 733 ) and 15 points under risk factor 14 because the defendant was released without any parole, probation, or supervision (see People v. Bangura, 185 A.D.3d 972, 125 N.Y.S.3d 864 ; People v. Ramos, 179 A.D.3d 850, 116 N.Y.S.3d 347 ). In any event, since the defendant was a presumptive level three sex offender pursuant to an automatic override, the points assessed on the risk assessment instrument are irrelevant (see People v. Wolm, 209 A.D.3d 682, 683, 175 N.Y.S.3d 332 ; People v. Barr, 205 A.D.3d 741, 742, 166 N.Y.S.3d 682 ).

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 People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also Guidelines at 4). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of...