People v. Pierre

184 A.D.3d 883

124 N.Y.S.3d 559 (Mem)

PEOPLE of State of New York, respondent,

v.Tedy PIERRE, appellant.

2018–15114

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

Submitted—June 3, 2020

June 24, 2020

Paul Skip Laisure, New York, N.Y. (Jenin Younes of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Cindy Horowitz of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated December 5, 2018, 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.

In 2006, the defendant was convicted, upon a jury verdict, of rape in the first degree, criminal sexual act in the first degree (two counts), sexual abuse in the first degree (five counts), and endangering the welfare of a child (three counts). He was sentenced to a determinate term of imprisonment of 15 years to be followed by a period of postrelease supervision of 5 years. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the defendant contested the assessment of 20 points under risk factor 3 for two victims and sought a downward departure from his presumptive level two sex offender designation. The Supreme Court assessed the defendant 105 points, including 20 points under risk factor 3, denied his application for a downward departure, and designated him a level two sex offender. The defendant appeals.

"In establishing a sex offender's appropriate risk level under SORA, ‘[t]he People bear the burden of proving the facts supporting the determinations by clear and convincing evidence’ " ( People v. Lema–Caguana, 179 A.D.3d 953, 954, 114 N.Y.S.3d 253, quoting People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [internal quotation marks omitted]; see Correction Law § 168–n[3] ). In assessing points, evidence may be derived from, inter alia, the defendant's admissions, the victim's statements, case summaries prepared by the Board of Examiners of Sex Offenders, or any other reliable source, including reliable hearsay (see People v. Fuhrtz, 180 A.D.3d 944, 945, 120 N.Y.S.3d 57 ; People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ).

The defendant's argument that he was improperly assessed 20 points under risk factor 3 is academic since, even with the deduction of those points, the defendant's point total of 85 would remain in the range of a presumptive risk level two designation (see People v. Grubert, 160 A.D.3d 993, 72 N.Y.S.3d 466 ).

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 ).

We agree with the...