People v. Joe

203 A.D.3d 1187

163 N.Y.S.3d 453 (Mem)

PEOPLE of State of New York, respondent,

v.Philip JOE, appellant.

2019–08344

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

Submitted—January 24, 2022

March 30, 2022

Janet E. Sabel, New York, NY (Simon Greenberg of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and George D. Adames of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Marina Cora Mundy, J.), dated June 14, 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.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant 120 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level three sex offender. The defendant challenges the denial of his application for a downward departure.

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] 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 Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). 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 ).

A downward departure may be warranted where the victim's lack of consent is due only to inability to consent by virtue of age, and scoring 25 points under risk factor 2, for sexual contact with the victim, results in an overassessment (see Guidelines at 9; People v. Fisher, 177 A.D.3d 615, 111 N.Y.S.3d 80 ; People v. Walker, 146 A.D.3d 824, 45 N.Y.S.3d 153 ). Here, considering the particular circumstances of the defendant's sexual conduct toward the victim, the defendant failed to demonstrate that the victim's lack of consent was due only to her inability to consent by virtue of her age (see People v. Blount, 195 A.D.3d 956, 146 N.Y.S.3d 533 ).

The defendant further contends that his alleged positive response to sex offender treatment constituted a mitigating factor warranting a downward departure from the presumptive risk level. Although a response to treatment may qualify as a ground for a downward departure where the response is "exceptional" (Guidelines at 17; see People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v. Smith, 194 A.D.3d 767, 768, 143 N.Y.S.3d 560 ; People v. Lopez, 193 A.D.3d 992, 142 N.Y.S.3d 831 ; People v. Belle, 193 A.D.3d 989, 142 N.Y.S.3d 823 ; People v. Ralph, 170 A.D.3d 900, 902, 94...