People v. Rivas

185 A.D.3d 740

126 N.Y.S.3d 185

PEOPLE of State of New York, respondent,

v.Benedicto RIVAS, appellant.

2018–06443

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

Submitted—December 18, 2019

July 8, 2020

Paul Skip Laisure, New York, NY (Meredith S. Holt of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Isaiah Affron on the brief), 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 (Joseph E. Gubbay, J.), dated February 7, 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.

At a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), the defendant was assessed 105 points, placing him at the top of the range for a presumptive level two designation. The defendant contends that the Supreme Court improvidently exercised its discretion in denying his request for a downward departure from the presumptive risk level.

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 SORA: 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 ).

Although "advanced age" may constitute a basis for a downward departure (Guidelines at 5; see People v. McClendon, 175 A.D.3d 1329, 1331, 108 N.Y.S.3d 36 ; People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 ), the defendant failed to demonstrate that his age at the time of the SORA hearing, 73 years old, constituted an appropriate mitigating factor and would minimize his risk of reoffense, particularly since the sexual offenses against the minor victims took place when the defendant was in his 50s (see People v. Mitchell, 178 A.D.3d 865, 111 N.Y.S.3d 861 ; People v. McClendon, 175 A.D.3d at 1131, 108 N.Y.S.3d 36; People v. Tromba, 157 A.D.3d 915, 66 N.Y.S.3d 907 ; People v. Munoz, 155 A.D.3d at 1069, 64 N.Y.S.3d 594 ; People v. DeJesus, 127 A.D.3d 1047, 5 N.Y.S.3d 893 ). The research studies relied upon by the defendant failed to demonstrate by a preponderance of the evidence that his age constituted a basis for a downward departure (see People v. Mitchell, 178 A.D.3d at 866, 111 N.Y.S.3d 861 ; People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 ).

The defendant failed to submit any medical evidence showing that his deteriorating health constitutes a "physical condition" that renders him less likely to commit sex crimes in the future (see People v. Charles, 162 A.D.3d 125, 77 N.Y.S.3d 130 ; cf. People v. Stevens, 55 A.D.3d 892, 867 N.Y.S.2d 108 ).

Contrary to the defendant's contention, the fact that he scored in the lowest risk category on the Static–99R actuarial risk assessment instrument does not, standing alone, qualify as an appropriate mitigating factor (see People v. Haye, 162 A.D.3d 801, 801, 79 N.Y.S.3d 304 ; People v. Curry, 158 A.D.3d 52, 68 N.Y.S.3d 483 ). Further, any remaining factors upon which the defendant relied were already taken into account by the Guidelines...