People v. Thompson

209 A.D.3d 1049

176 N.Y.S.3d 718

PEOPLE of State of New York, respondent,

v.Mary THOMPSON, appellant.

2021–06120

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

Submitted—October 3, 2022

October 26, 2022

Law Offices of Michael Pollok, PLLC, Red Hook, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Orange County (William L. DeProspo, J.), dated August 19, 2021, which, after a hearing, designated her 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 County Court assessed the defendant 75 points on the risk assessment instrument, denied her application for a downward departure from her presumptive risk level, and designated her a level two sex offender. The defendant appeals.

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 ).

Although a court may downwardly depart from the presumptive risk level "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 in this category results in an over-assessment of the offender's risk to public safety" ( People v. Quirindongo, 153 A.D.3d 863, 863, 57 N.Y.S.3d 902 [internal quotation marks omitted]; see People v. Anderson, 137 A.D.3d 988, 988, 27 N.Y.S.3d 616 ), here, the County Court providently exercised its discretion in denying the defendant's application. A downward departure is not warranted on this ground considering the age disparity between the then 45–year–old defendant and the then 16–year–old victim (see People v. Romulus, 189 A.D.3d 553, 555, 136 N.Y.S.3d 291 ; People v. Sick, 186 A.D.3d 1733, 1734, 129 N.Y.S.3d 799 ).

Contrary to the defendant's contention, the alleged support provided by the defendant's family is adequately taken into account by the Guidelines’ consideration of living arrangements (see People v. Taylor, 199 A.D.3d 845, 154 N.Y.S.3d 252 ; People v. Powell, 188 A.D.3d 734, 735, 131 N.Y.S.3d 899 ). Moreover, the defendant failed to demonstrate how her family support established a lower likelihood of reoffense or danger to the community (see People v. Roelofsen, 195 A.D.3d 962, 963, 146 N.Y.S.3d 532 ; People v. Fuhrtz, 180 A.D.3d 944, 947, 120 N.Y.S.3d 57 ).

The defendant also asserts that she was entitled to a downward departure based on her age. Although "advanced age" may constitute a basis for a downward departure (Guidelines at 5), the defendant failed to demonstrate that her age at the time of the SORA hearing on June 10, 2021, 49 years old, constituted an appropriate mitigating factor and minimized her risk of reoffense (see People v. Mitchell, 196 A.D.3d 516, 518, 146 N.Y.S.3d 851 ; People v. Lewis, 188 A.D.3d 731, 732, 131 N.Y.S.3d 904 ). Moreover, the research studies relied upon by the defendant failed to demonstrate by a preponderance of the evidence that her age constituted a basis for a downward departure (see People v. Rivas, 185 A.D.3d 740, 126 N.Y.S.3d 185 ; People v. Mitchell, 178 A.D.3d 865, 866, 111 N.Y.S.3d 861 ).

Further, although a response to treatment may qualify as a ground for a downward departure where the response is "exceptional" (Guidelines at 17; see People v. Lazzari, 169 A.D.3d 837, 838, 92 N.Y.S.3d 656 ; People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151 ), the defendant failed to establish the facts in support of that ground by a preponderance of the evidence (see People v. Mitchell, 196 A.D.3d 516, 146 N.Y.S.3d 851 ; People v. Lopez, 193 A.D.3d 992, 992–993, 142 N.Y.S.3d 831 ; People v. Lazzari, 169 A.D.3d 837, 92 N.Y.S.3d 656 ).

Contrary to the defendant's further contentions, she failed to prove by a preponderance of the...