People v. Romero

185 N.Y.S.3d 711 (Mem)

PEOPLE of State of New York, respondent,

v.Cristian ROMERO, appellant.

2021–06444

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

Submitted—March 9, 2023

April 12, 2023

Laurette D. Mulry, Riverhead, NY (Genevieve M. Cahill of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Rosalind C. Gray and Glenn Green of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated August 18, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 115 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level three sex offender.

Contrary to the defendant's contention, the assessment of points under risk factor 6 was not the result of, or in any way connected with, the victim's age, and thus, assessing points under both risk factors 5 and 6 did not constitute double counting (see People v. Dipilato, 155 A.D.3d 792, 793, 63 N.Y.S.3d 525 ; People v. Smith, 144 A.D.3d 652, 653, 40 N.Y.S.3d 473 ; People v. Caban, 61 A.D.3d 834, 835, 877 N.Y.S.2d 403 ).

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 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 factors 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 ).

"The Board [of Examiners of Sex Offenders] or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [under risk factor 2 of the risk assessment instrument] results in an over-assessment of the offender's risk to public safety" (Guidelines at 9; see People v. Thompson, 209 A.D.3d 1049, 1050, 176 N.Y.S.3d 718 ; People v. Permenter, 208 A.D.3d 905, 906–907, 174 N.Y.S.3d 104 ; People v. Garner, 163 A.D.3d 1009, 1009, 81 N.Y.S.3d 572 ; People v. Anderson, 137 A.D.3d 988, 27 N.Y.S.3d 616 ; People v. Wyatt, 89 A.D.3d at 129, 931 N.Y.S.2d 85 ). Here, the defendant failed to demonstrate by a preponderance of the evidence that the victim's lack of consent was due...