Opinion
764 KA 20-01300
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Avery EDWARDS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ), defendant contends that he was denied due process when the Board of Examiners of Sex Offenders (Board) failed to comply with Correction Law § 168-n (3), which provides in relevant part that, "[n]o later than thirty days prior to the board's recommendation, the sex offender shall be notified that his or her case is under review and that he or she is permitted to submit to the board any information relevant to the review." Although defendant was not provided that requisite notice, we conclude that the error was harmless under the circumstances of this case (see People v. Baxin , 26 N.Y.3d 6, 11-12, 19 N.Y.S.3d 205, 41 N.E.3d 62 [2015] ; People v. Lashway , 25 N.Y.3d 478, 484, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ).
Defendant was not prejudiced by the error because, even though he did not have the opportunity to submit information relevant to the initial case review, the Board was aware when it prepared its recommendation that defendant had not been charged with any reoffending conduct since his release from prison years earlier and, moreover, after he was timely notified of the scheduled SORA hearing and provided with the Board's recommendation (see Correction Law § 168-n [3] ), defendant submitted numerous documents to County Court, in advance of the hearing, rebutting the Board's recommendation and supporting his assertion of mitigating circumstances (see generally Lashway , 25 N.Y.3d at 484, 13 N.Y.S.3d 337, 34 N.E.3d 847 ; People v. Krahmalni , 170 A.D.3d 444, 444-445, 94 N.Y.S.3d 73 [1st Dept. 2019] ).
We reject defendant's further contention that the court erred in assessing 15 points against him under risk factor 1 for having inflicted physical injury on the victim. In any event, even assuming, arguendo, that the court erred in assessing 15 points with respect to that risk factor, we note that defendant would nevertheless have been assessed 85 points under the risk assessment instrument, which is still a presumptive level two risk (see People v. Rawlinson , 106 A.D.3d 1509, 1510, 964 N.Y.S.2d 443 [4th Dept. 2013], lv denied 21 N.Y.3d 863, 2013 WL 4516323 [2013] ).
Finally, defendant contends that the court erred in refusing to grant him a downward departure from his presumptive risk level. A sex offender seeking a downward departure 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 [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" ( People v. Sanders , 196 A.D.3d 1066, 1066, 147 N.Y.S.3d 482 [4th Dept. 2021] [internal quotation marks omitted]; see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). If the defendant meets that burden, "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. Ramos , 186 A.D.3d 511, 511, 126 N.Y.S.3d 381 [2d Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878267 [2020] [emphasis added]; see Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Here, we agree with defendant that the court erred in concluding that defendant failed to identify and establish the existence of a mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines. Defendant was sentenced to one year in jail with no postrelease supervision and, due to an oversight, he was not registered as a sex offender at sentencing or upon his release from jail. In support of his request for a downward departure, defendant relied on, inter alia, the fact that, despite being unsupervised, he did not reoffend during the seven years between his release from prison on the underlying sex offense and the SORA hearing.
In our view, the fact that defendant was at liberty while unsupervised for an extended period of time without any reoffending conduct is a mitigating factor not adequately taken into account by the guidelines (see People v. Sotomayer , 143 A.D.3d 686, 687, 38 N.Y.S.3d 271 [2d Dept. 2016] ; see also People v. Burgess , 191 A.D.3d 1256, 1256-1257, 137 N.Y.S.3d 781 [4th Dept. 2021] ), and it is undisputed that defendant established the existence of that mitigating factor by a preponderance of the evidence (see e.g. Sotomayer , 143 A.D.3d at 687, 38 N.Y.S.3d 271 ; People v. Rivera , 109 A.D.3d 805, 806, 971 N.Y.S.2d 125 [2d Dept. 2013], lv denied 22 N.Y.3d 856, 2013 WL 6169291 [2013] ).
In view of the court's conclusion, it did not exercise its discretion to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of defendant's dangerousness and risk of sexual recidivism. Under the circumstances of this case, we reverse the order and remit the matter to County Court to make that determination (see People v. Lewis , 140 A.D.3d 1697, 1697, 32 N.Y.S.3d 789 [4th Dept. 2016] ).