People v. Lane

201 A.D.3d 1266

157 N.Y.S.3d 793 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Todd LANE, Appellant.

531040

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

Calendar Date: November 18, 2021

Decided and Entered: January 27, 2022

Shane A. Zoni, Public Defender, Hudson (Jessica Howser of counsel), for appellant.

David E. Woodin, Special Prosecutor, Catskill, for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

(1) Appeal from an order of the County Court of Columbia County (Koweek, J.), entered December 27, 2021, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act, and (2) motion pursuant to CPL 460.30(1) for an extension of time to file a notice of appeal.

Defendant pleaded guilty to an indictment charging him with rape in the first degree, criminal sexual act in the first degree and sexual abuse in the first degree and, in January 2010, received an aggregate sentence of 10 years in prison to be followed by 20 years of postrelease supervision ( 192 A.D.3d 1262, 1262–1263, 143 N.Y.S.3d 455 [2021] ). Following a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]), County Court denied defendant's request for a downward departure, classified him as a risk level two sex offender and designated him as a sexually violent offender. Defendant filed a July 2019 notice of appeal from that risk level assessment despite no written order having yet been signed. After County Court signed a written order on April 16, 2021, defendant moved in this Court for an extension of time to file a notice of appeal, pursuant to CPL 460.30(1). We held the motion and the appeal in abeyance until the People ensured proper entry of the April 2021 order ( 202 A.D.3d 32, 38-39, 158 N.Y.S.3d 426 [2021] ), which has now occurred.

Defendant's motion was improperly made under CPL 460.30, as SORA proceedings are civil in nature (see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; People v. Gallagher, 129 A.D.3d 1252, 1253, 11 N.Y.S.3d 712 [2015], lv denied 26 N.Y.3d 908, 2015 WL 5972484 [2015] ; see also Correction Law § 168–n [3] [providing that either party in a SORA proceeding may appeal as of right pursuant to the provisions of the CPLR]). However, we exercise our discretion to treat defendant's premature July 2019 notice of appeal as if it had been taken from the order dated April 16, 2021 and entered December 27, 2021, thus rendering the notice valid (see CPLR 5520[c] ; People v. Brown, 190 A.D.3d 1120, 1121 n. 1, 140 N.Y.S.3d 303 n.1 [2021] ; People v. Lesch, 126 A.D.3d 1261, 1262 n., 6 N.Y.S.3d 188 n. [2015], lv denied 26 N.Y.3d 905, 2015 WL 5445898 [2015] ). Accordingly, defendant's motion seeking an extension of time to file a notice of appeal is academic.

Turning to the merits of the appeal, defendant argues that he was entitled to a downward departure to risk level one based on his expressions of remorse and his young age at the time of the offense. "As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v. Kemp, 163 A.D.3d 1339, 1341, 81 N.Y.S.3d 641 [2018] [internal quotation marks, brackets and citations omitted], lv denied 32 N.Y.3d 919, 2019 WL 1409545 [2019] ; accord People v. Holton, 193 A.D.3d 1212, 1213, 144 N.Y.S.3d 260 [2021] ; People v. Wilson, 167 A.D.3d 1192, 1193, 88 N.Y.S.3d 715 [2018] ; see People v. Mathews, 181 A.D.3d 1103, 1105, 118 N.Y.S.3d 819 [2020] ). The assessment of no points under risk factor 12, addressing acceptance of responsibility, "adequately reflected his ... expressions of remorse" ( People v. Scone, 145 A.D.3d 1327, 1329, 42 N.Y.S.3d 700 [2016] ; see People v. Finocchiaro, 140 A.D.3d 1676, 1676–1677, 34 N.Y.S.3d 819 [2016], lv denied 28 N.Y.3d 906, 2016 WL 6273217 [2016] ; People v. Filkins, 128 A.D.3d 1231, 1232, 9 N.Y.S.3d 706 [2015], lv denied 26 N.Y.3d 904, 2015 WL 5254877 [2015] ). Moreover, defendant's young age at the time of these offenses – which are his first sexual offenses – is considered an aggravating factor under risk factor...