People v. Savino

222 A.D.3d 792

202 N.Y.S.3d 383

PEOPLE of State of New York, respondent,

v.William SAVINO, appellant.

2022–10290

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

Submitted—September 28, 2023

December 13, 2023

Laurette D. Mulry, Riverhead, NY (Felice B. Milani and Mark J. Ermmarino of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Jonathan D. Estreich of counsel), for respondent.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, JANICE A. TAYLOR, LOURDES M. VENTURA, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated October 19, 2022, 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 this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the defendant was designated a level two sex offender following his conviction of sexual battery ( NC Gen Stat § 14–27.33 ) in North Carolina and his relocation to New York. On appeal, the defendant contends that the County Court erred in assessing him points under both risk factor 5, age of victim, and risk factor 6, victim suffered from a mental disability, mental incapacity, or physical helplessness, and in denying his application for a downward departure from his presumptive risk level.

Contrary to the defendant's contention, the County Court properly assessed the defendant 30 points under risk factor 5 because the victim's age was 63 or more and 20 points under risk factor 6 because the victim suffered from a mental disability. Inasmuch as the record reflects that the victim suffered from a mental disability that was "not the result of, or in any way connected with, her age," assessing points in both categories did not constitute impermissible double counting ( People v. Caban, 61 A.D.3d 834, 835, 877 N.Y.S.2d 403 ; see People v. Romero, 215 A.D.3d 773, 185 N.Y.S.3d 711 ; People v. Brown, 131 A.D.3d 520, 14 N.Y.S.3d 694 ).

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 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" ( People v. Brocato, 188 A.D.3d 728, 728–729, 131 N.Y.S.3d 645 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).

Contrary to the defendant's contention, he failed to sustain his burden of proof in support of his application for a downward departure. Although "advanced...