Opinion
259 KA 19-02224
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Mark GATLING, Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant, who relocated to New York State having been previously convicted of a sex offense in Connecticut, appeals from an order (written order) determining that he is a level two risk. We previously held this case, reserved decision, and remitted the matter to County Court for compliance with Correction Law § 168-n (3) ( People v. Gatling , 188 A.D.3d 1765, 132 N.Y.S.3d 918 [4th Dept. 2020] ). Although the court's written order did not set forth the "findings of fact and conclusions of law on which the determinations are based" ( § 168-n [3] ; see Gatling , 188 A.D.3d at 1765, 132 N.Y.S.3d 918 ), we conclude that the written order together with the court's oral findings and conclusions on remittal "are clear, supported by the record and sufficiently detailed to permit intelligent appellate review" ( People v. Houck , 170 A.D.3d 1642, 1642, 94 N.Y.S.3d 752 [4th Dept. 2019], lv denied 33 N.Y.3d 910, 2019 WL 2626033 [2019] [internal quotation marks omitted]; see People v. McCabe , 142 A.D.3d 1379, 1380, 38 N.Y.S.3d 352 [4th Dept. 2016] ; People v. Young , 108 A.D.3d 1232, 1233, 969 N.Y.S.2d 372 [4th Dept. 2013], lv denied 22 N.Y.3d 853, 2013 WL 5658386 [2013], rearg denied 22 N.Y.3d 1036, 981 N.Y.S.2d 351, 4 N.E.3d 362 [2013] ).
We reject defendant's contention that the court erred in refusing to grant him a downward departure from his presumptive risk level. Defendant correctly asserts that a prolonged period at liberty without any reoffending sexual conduct constitutes a mitigating circumstance that is, "as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines" ( People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; see People v. Edwards , 200 A.D.3d 1594, 1595, 159 N.Y.S.3d 292 [4th Dept. 2021] ; 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] ). We conclude, however, that defendant failed to establish by a preponderance of the evidence the existence of that mitigating circumstance in this case inasmuch as the record establishes that he was incarcerated or otherwise under supervision for numerous offenses and violations for extensive periods of time between the underlying sex offense and his sex offender designation in New York State (see People v. Yglesias , 180 A.D.3d 821, 823, 120 N.Y.S.3d 169 [2d Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 3468268 [2020] ; People v. Sprinkler , 162 A.D.3d 802, 803, 79 N.Y.S.3d 232 [2d Dept. 2018], lv denied 32 N.Y.3d 907, 2018 WL 4997600 [2018] ). Moreover, even if defendant surmounted the first two steps of the analysis (see generally Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), upon weighing the mitigating circumstance against the aggravating circumstances—most prominently defendant's " ‘overall criminal history’ " ( People v. Duryee , 130 A.D.3d 1487, 1488, 12 N.Y.S.3d 731 [4th Dept. 2015] ), including his prior failures to register as a sex offender in Connecticut (see People v. Perez , 158 A.D.3d 1070, 1071, 70 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013412 [2018] )—we conclude that the totality of the circumstances establishes that defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism (see Burgess , 191 A.D.3d at 1257, 137 N.Y.S.3d 781 ; see generally People v. Sincerbeaux , 27 N.Y.3d 683, 690-691, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ).