Opinion
2018–11819
03-25-2020
PEOPLE of State of New York, respondent, v. Winston BAKER, appellant.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Queens County ( Gia Morris, J.), dated September 12, 2018, 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 promoting a sexual performance by a child. On the same day, the defendant also was convicted, upon his plea of guilty, of endangering the welfare of a child, which arose from a prior incident of sexual misconduct with a young cousin. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant a total of 90 points, which included 10 points under risk factor 2 (sexual contact with victim), 30 points under risk factor 3 (number of victims), and 20 points under risk factor 7 (relationship with victim). The court then granted the People's request for an upward departure and denied the defendant's request for a downward departure, and designated the defendant a level three sex offender. The defendant appeals.
In establishing a defendant's risk level under SORA, the People bear the burden of establishing the facts supporting the determinations sought by clear and convincing evidence (see People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 ; People v. Guadeloupe, 173 A.D.3d 910, 911, 100 N.Y.S.3d 384 ).
We agree with the Supreme Court's determination to assess 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) (see People v. Gillotti, 23 N.Y.3d 841, 860, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 ; People v. Rivas, 173 A.D.3d 786, 787, 99 N.Y.S.3d 678 ). However, the court should not have assessed 10 points under risk factor 2 (sexual contact with victim). "The Board [of Examiners of Sex Offenders] Guidelines make it clear the [risk assessment instrument] scoring is predicated upon consideration of an offender's ‘current offense,’ which clearly relates to the SORA qualifying offense and not necessarily other offenses that a defendant may have committed" ( People v. Reid, 141 A.D.3d 156, 159, 35 N.Y.S.3d 5 ; see People v. Hoffman, 62 A.D.3d 976, 976, 880 N.Y.S.2d 122 ; People v. Vasquez, 49 A.D.3d 1282, 1283, 853 N.Y.S.2d 767 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] ). Here, the qualifying offense for triggering the SORA registration process was the defendant's conviction of promoting a sexual performance by a child, which did not involve sexual contact with the victims. Although the defendant also was convicted of endangering the welfare of a child based upon his improper sexual conduct against his cousin, the offense was not a qualifying offense under SORA and his cousin was not associated with the qualifying offense. Accordingly, deducting those points, the defendant should have been assessed 80 points, placing him, presumptively, at level two.
Contrary to the defendant's contentions, the Supreme Court providently exercised its discretion in granting the People's request for an upward departure and denying the defendant's request for a downward departure. Specifically, an upward departure to risk level three was warranted based on aggravating factors, which the People established by clear and convincing evidence (see People v. Bowen, 175 A.D.3d 516, 517, 103 N.Y.S.3d 832 ; People v. Colsrud, 155 A.D.3d 1601, 1602, 63 N.Y.S.3d 771 ; People v. Wheeler, 144 A.D.3d 1341, 1342, 40 N.Y.S.3d 683 ). Although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 may result in an overassessment of an offender's risk to public safety (see People v. Gillotti, 23 N.Y.3d at 860, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d at 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 ), a downward departure is not warranted under the circumstances of this case (see People v. Goldman, 150 A.D.3d 905, 907, 55 N.Y.S.3d 78 ; People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ). The defendant was found in possession of over 1,600 images of child pornography, including images of children as young as two years old being subjected to oral and anal penetration. The other factors asserted by the defendant in support of his request for a downward departure either were not appropriate mitigating circumstances or were outweighed by the aggravating factors (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Scales, 134 A.D.3d 790, 791, 20 N.Y.S.3d 652 ; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ).
Accordingly, we agree with the Supreme Court's determination to designate the defendant a level three sex offender.
RIVERA, J.P., CHAMBERS, ROMAN and BRATHWAITE NELSON, JJ., concur.