People v. Wolm

209 A.D.3d 682

175 N.Y.S.3d 332

PEOPLE of State of New York, respondent,

v.Joseph WOLM, appellant.

2020–07447

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

Submitted—September 6, 2022

October 5, 2022

Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Christopher Turk of counsel), for respondent.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Chris Ann Kelley, J.), dated May 11, 2020, 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.

The defendant was convicted, upon his plea of guilty, of possessing a sexual performance by a child less than 16 years of age ( Penal Law § 263.16 ). Following a hearing to determine the defendant's risk level under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the County Court applied an automatic override to a presumptive risk level three classification based upon the defendant's 2005 conviction of course of sexual conduct against a child in the first degree ( Penal Law § 130.75 ), denied the defendant's request for a downward departure from the presumptive risk level, and designated him a level three sex offender. The defendant appeals.

Since it was undisputed that the defendant had previously been convicted of a felony sex crime, he was presumptively a level three sex offender pursuant to an automatic override, irrespective of the points scored on the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]; People v. Manson, 111 A.D.3d 688, 688, 974 N.Y.S.2d 792 ; People v. Henry, 107 A.D.3d 678, 679, 966 N.Y.S.2d 499 ). In light of our determination that an override was established, we need not reach the defendant's challenge to the assessment of points under risk factors 3 and 7 (see People v. Barr, 205 A.D.3d 741, 742, 166 N.Y.S.3d 682 ; People v. Berry, 138 A.D.3d 945, 946, 28 N.Y.S.3d 631 ; People v. Richardson, 124 A.D.3d 743, 743, 998 N.Y.S.2d 665 ; People v. Barfield, 115 A.D.3d 835, 835, 982 N.Y.S.2d 369 ; People v. Manson, 111 A.D.3d at 688, 974 N.Y.S.2d 792 ; People v. Roache, 110 A.D.3d 776, 777, 973 N.Y.S.2d 271 ).

Contrary to the defendant's contention, the County Court did not err in rejecting his argument for a downward departure from the presumptive risk level. " ‘Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level’ " ( People v. Locklear, 154 A.D.3d 888, 889, 62 N.Y.S.3d 489, quoting People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Johnson, 135 A.D.3d 720, 721, 22 N.Y.S.3d 238 ). "Regardless of whether the presumptive risk level has been determined by the assessment of points or the application of an override, a defendant who seeks a downward departure must first identify a mitigating circumstance or circumstances of a kind or to a degree not adequately taken into account by the guidelines" ( People v. Gordon, 133 A.D.3d 835, 836–837, 20 N.Y.S.3d 165 [internal quotation marks omitted]; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701, citing Guidelines at 4; People v. Locklear, 154 A.D.3d at 889, 62 N.Y.S.3d 489 ; People v. Johnson, 135 A.D.3d at 721, 22 N.Y.S.3d 238 ). The defendant then has the burden of proving by a preponderance of the evidence the existence of those circumstances in his or her case (see People v. Gillotti, 23 N.Y.3d at 861, 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Gordon, 133 A.D.3d at 837, 20 N.Y.S.3d 165 ). Only upon the defendant's satisfaction of that two-fold showing does the court become vested with discretion to depart from the presumptive risk level (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Simmons, 170 A.D.3d 904, 905, 93 N.Y.S.3d 862 ; People v. Johnson, 135 A.D.3d at 721, 22 N.Y.S.3d 238 ; People v. Gordon, 133 A.D.3d at 837, 20 N.Y.S.3d 165 ). Although a defendant's response to sex offender treatment, if exceptional, may qualify as a mitigating factor that warrants a downward departure, here, the defendant failed to prove by a preponderance of the evidence that his response to sex...