People v. Saunders

174 N.Y.S.3d 899 (Mem)

PEOPLE of State of New York, respondent,

v.Hallie SAUNDERS, appellant.

2014–10372

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

Submitted—September 13, 2022

October 12, 2022

Twyla Carter, New York, NY (Elizabeth B. Emmons of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Daniel Berman of counsel), for respondent.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, JANICE A. TAYLOR, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Matthew J. D'Emic, J.), dated October 30, 2014, 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 his plea of guilty, of criminal sexual act in the third degree. After a hearing to determine the defendant's risk level designation pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court designated the defendant a level two sex offender.

Contrary to the defendant's contention, the Supreme Court properly assessed 20 points under risk factor 4. The People presented clear and convincing evidence that he committed two or more acts of sexual misconduct, at least one of which included sexual intercourse, over a period greater than 24 hours (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006] [hereinafter Guidelines]; People v. Sanchez, 136 A.D.3d 1007, 1007–1008, 26 N.Y.S.3d 320 ; People v. Lucius, 122 A.D.3d 819, 819, 996 N.Y.S.2d 659 ). The People also presented clear and convincing evidence that the defendant has a substance abuse history, and the court properly assessed the defendant 15 points under risk factor 11 (see People v. Hernandez, 153 A.D.3d 862, 863, 57 N.Y.S.3d 906 ; People v. Henriquez, 146 A.D.3d 911, 44 N.Y.S.3d 768 ).

Contrary to the defendant's further contention, the Supreme Court properly denied his request for a downward departure. 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 ; People v. Velasquez, 145 A.D.3d 924, 924, 42 N.Y.S.3d 845 ). 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 ).

Here, the defendant failed to establish that a downward departure was warranted. Most of the alleged mitigating circumstances identified by the defendant, including his lack of criminal history, his good disciplinary record while incarcerated, his expressed remorse, and access to a supportive family upon release, are adequately taken into account by the Guidelines (see People v. Barrott, 199 A.D.3d 1029, 1030, 154 N.Y.S.3d 803 ; People v. Torres, 124 A.D.3d 744, 745, 998 N.Y.S.2d 464 ). Moreover, although a " ‘defendant's response to [sex offender] treatment may qualify as a ground for a downward departure where the response is exceptional’ " ( People v. Del–Carmen, 186 A.D.3d 878, 879, 128 N.Y.S.3d 608, quoting People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561 ), here, the defendant failed to establish that his response to such treatment was exceptional (see People v. Del–Carmen, 186 A.D.3d at 879, 128...