People v. McGee

197 A.D.3d 513

148 N.Y.S.3d 721 (Mem)

PEOPLE of State of New York, respondent,

v.Sylvester MCGEE, appellant.

2019–09950

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

Submitted—May 19, 2021

August 4, 2021

Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Caren C. Manzello of counsel), for respondent.

HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated August 12, 2019, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

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

The defendant was convicted, upon a plea of guilty, of criminal sexual act in the first degree ( Penal Law § 130.50[3] ), sexual abuse in the first degree (three counts) ( Penal Law § 130.65[3] ), and endangering the welfare of a child ( Penal Law § 260.10[1] ). After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level two risk designation, the County Court designated the defendant a level two sex offender. The defendant appeals.

In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence (see Correction Law § 168–n[3] ; People v. Guadeloupe, 173 A.D.3d 910, 911, 100 N.Y.S.3d 384 ; People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders (hereinafter the Board), or any other reliable source, including reliable hearsay" ( People v. Crandall, 90 A.D.3d at 629, 934 N.Y.S.2d 446 ; see SORA: Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]).

Here, the County Court's assessment of points under risk factor 9 was proper as the People (see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ) established the defendant's prior violent felony youthful offender adjudication by clear and convincing evidence through the Board's case summary (see People v. Kennedy, 160 A.D.3d 671, 671, 74 N.Y.S.3d 300 ; Guidelines at 6–7). Furthermore, the court properly assessed points under risk factor 13 as the People established by clear and convincing evidence that the defendant's conduct while confined was unsatisfactory. The case summary indicated that the defendant received multiple sanctions while incarcerated (see People v. Guadeloupe, 173 A.D.3d at 911, 100 N.Y.S.3d 384 ), including one for stalking, which is considered a sexual offense under the Department of Corrections and Community Supervision rules of conduct (see 7 NYCRR 270.2 [B][2][v]).

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. Colon, 186 A.D.3d 1730, 1731, 130 N.Y.S.3d 89, quoting People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see Guidelines at 4). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the...