Opinion
10-26-2016
PEOPLE of State of New York, respondent, v. Tommaso DILILLO, appellant.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan Dennehey of counsel; David Choi on the brief), for respondent.
Seymour W. James, Jr., New York, N.Y. (Lorraine Maddalo of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan Dennehey of counsel; David Choi on the brief), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated October 22, 2012, 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.
In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA), after a hearing, the Supreme Court determined that the defendant was a presumptive level two sex offender based on the defendant's total score on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders, which assessed him 100 points for risk factors including continuing course of sexual misconduct, the relationship between the defendant and the victim, and history of drug and alcohol abuse. However, the court determined that an upward departure from the presumptive risk level was warranted under the circumstances. Accordingly, in the order appealed from, the court upwardly departed from the presumptive risk level and designated the defendant a level three sex offender. On appeal, the defendant contends that the court should not have assessed 55 of the 100 points, and that the People failed to sustain their burden of establishing the existence of aggravating factors warranting an upward departure from the presumptive risk level.
Contrary to the defendant's contention, clear and convincing evidence supports the Supreme Court's determination to assess him 15 points under risk factor eleven (history of drug or alcohol abuse) (see People v. Ologbonjaiye, 109 A.D.3d 804, 971 N.Y.S.2d 126 ; People v. Quinn, 99 A.D.3d 776, 952 N.Y.S.2d 235, see also People v. Jackson, 134 A.D.3d 1580, 22 N.Y.S.3d 749 ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter Guidelines] at 15). Similarly, the defendant was properly assessed 20 points under risk factor seven (relationship with victim), since the evidence demonstrated that the defendant established a relationship with the victim for the purpose of victimizing her (see People v. Mollenkopf, 54 A.D.3d 1136, 1137, 864 N.Y.S.2d 215 ; People v. Grosfeld, 35 A.D.3d 692, 693, 826 N.Y.S.2d 428 ).
However, the Supreme Court erred in assessing 20 points under risk factor four (continuing course of sexual misconduct). In order to find that the defendant engaged in a “continuing course of sexual misconduct,” as defined under the Guidelines, the People were required to establish, by clear and convincing evidence, that the defendant engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours” (Guidelines at 10). Here, it is undisputed that the defendant and the victim engaged in only one act of sexual intercourse, and thus, his conduct does not meet the definition under the Guidelines of a continuing course of sexual misconduct (see People v. S.G., 4 Misc.3d 563, 776 N.Y.S.2d 449 [Sup.Ct., N.Y. County] ; see also People v. Costello, 35 A.D.3d 754, 826 N.Y.S.2d 429 ). After deducting the points assigned under this risk factor, the defendant scored a total of 80 points, which still presumptively placed him at level two.
We agree with the Supreme Court that an upward departure was justified in this case. A departure from the presumptive risk level is warranted where “ ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines' ” (People v. Wyatt, 89 A.D.3d 112, 119, 931 N.Y.S.2d 85, quoting Guidelines at 4; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). Here, the record discloses that there was clear and convincing evidence of an aggravating factor in that the defendant threatened the victim in order to compel her to work as a prostitute (see People v. Duart, 84 A.D.3d 908, 923 N.Y.S.2d 149 ; People v. Smith, 78 A.D.3d 805, 912 N.Y.S.2d 225 ). Accordingly, the defendant was properly designated a level three sex offender.