People v. McMillan

2023 NY Slip Op 51232(U)

The People of the State of New York, Respondent, v. Benjamin McMillan, Appellant.

No. 2022-310 K C

Supreme Court of New York, Second Department

September 22, 2023

Unpublished Opinion

New York City Legal Aid Society (Lorraine Maddalo of counsel), for appellant.

Kings County District Attorney (David Cao of counsel), for respondent.

PRESENT:: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ

Appeal from an order of the Criminal Court of the City of New York, Kings County (Keshia J. Espinal, J.), dated April 11, 2022. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs.

In the underlying criminal action, defendant was convicted, upon his plea of guilty, of forcible touching (Penal Law § 130.52 [1]). At a Sex Offender Registration Act (SORA) hearing pursuant to Correction Law article 6-C, defendant was assessed a total of 105 points under the risk assessment instrument, presumptively placing him within the range for a level two designation. However, based upon defendant's prior conviction of a felony sex crime, the Board of Examiners of Sex Offenders recommended that defendant be classified as a level three sex offender pursuant to an automatic override (see People v Balcerak, 212 A.D.3d 662 [2023]; People v Rhinehart, 210 A.D.3d 706 [2022]; People v Jones, 196 A.D.3d 515 [2021]). The Criminal Court designated defendant a level three sex offender and defendant appeals.

"The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three" (People v Lobello, 123 A.D.3d 993, 994 [2014]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]; People v Barr, 205 A.D.3d 741, 742 [2022]). "The first override, which is relevant to this appeal, is for a prior felony conviction of a sex crime" (People v McCurdy, 198 A.D.3d 991, 992 [2021]; see Guidelines at 3, 19). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" (Lobello, 123 A.D.3d at 994; see Correction Law § 168-n [3]; People v Abdullah, 210 A.D.3d 704 [2022]). "Once the People have sustained this burden, 'a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic'" (People v Johnson, 135 A.D.3d 720, 720-721 [2016], quoting People v Gordon, 133 A.D.3d 835, 836 [2015]).

Here, the People sustained their burden of proving, by clear and convincing evidence, the applicability of the override based on defendant's prior conviction of rape in the first degree (see People v Wolm, 209 A.D.3d 682 [2022]; see also People v Mingo, 12 N.Y.3d 563, 573 [2009]). In light of our determination that an override was established, we need not reach defendant's challenge to the assessment of points under certain specified risk factors (see People v Hraklis, 214 A.D.3d 681 [2023]; Wolm, 209 A.D.3d at 683; Barr, 205 A.D.3d at 742; People v Berry, 138 A.D.3d 945 [2016]; People v Guitard, 57 A.D.3d 751 [2008]).

With respect to the hearing court's denial of defendant's request for a downward departure, courts apply three analytical steps to determine whether to order a downward departure (see People v Hatton, 72 Misc.3d 141 [A], 2021 NY Slip Op 50838[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). First, the defendant must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the SORA guidelines (see Guidelines at 4-5; People v Gillotti, 23 N.Y.3d 841, 861-864 [2014]). Second, the defendant must prove the existence of those circumstances by a preponderance of the evidence (see Gillotti, 23 N.Y.3d at 861-864; People v Kohout, 145 A.D.3d 922, 923 [2016]; People v Santiago, 137 A.D.3d 762 [2016]). Third, if the defendant satisfies the foregoing, "the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (Gillotti, 23 N.Y.3d at 861). In exercising this discretion, the court must "determine whether the totality of the circumstances warrants a departure to avoid an over... assessment of the defendant's dangerousness and risk of sexual recidivism" (id.; see Kohout, 145 A.D.3d at 923).

Here, the alleged mitigating factors identified by defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see Gillotti, 23 N.Y.3d at 861; People v Smith, 168 A.D.3d 1006 [2019]; People v Ragabi, 150 A.D.3d 1161 [2017]; People v Ziliox, 145 A.D.3d 925 [2016]; People v Davis, 139 A.D.3d 1226 [2016]; People v Jackson, 139 A.D.3d 1031 [2016]).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.