Opinion
No. 2021-02609
07-03-2024
The People of the State of New York, respondent, v. Douglas Johnson, appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Michelle Kaszuba and Glenn Green of counsel), for respondent. Joseph A Hanshe, Sayville, NY (Kimberly M. Ball of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Michelle Kaszuba and Glenn Green of counsel), for respondent.
Joseph A Hanshe, Sayville, NY (Kimberly M. Ball of counsel), for appellant.
ANGELA G. IANNACCI, J.P., WILLIAM G. FORD, JANICE A. TAYLOR, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated March 4, 2021, 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 a jury verdict, of rape in the first degree and three counts of murder in the second degree. Following a hearing to determine the defendant's risk level under the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court applied an automatic override to a presumptive level three risk classification on the basis that the defendant caused the victim's death (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]). The court denied the defendant's application for a downward departure and designated him a level three sex offender. The defendant appeals.
"The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three" (People v Brandt, 222 A.D.3d 890, 890; see Guidelines at 3). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" (People v Brandt, 222 A.D.3d at 890). "[O]nce the People have sustained [this] burden... a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic" (id. at 891 [internal quotation marks omitted]; see People v Broadus, 142 A.D.3d 595, 595-596).
Here, the People established by clear and convincing evidence that the defendant caused the death of the victim (see People v Rivera, 222 A.D.3d 1010, 1011; People v Abdullah, 210 A.D.3d 704, 705). Thus, the Supreme Court properly determined that the defendant was presumptively a level three sex offender pursuant to the second automatic override, irrespective of the points scored on the risk assessment instrument (see People v Rivera, 222 A.D.3d at 1011; People v Wolm, 209 A.D.3d 682, 683). 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 12 and 13 (see People v Wolm, 209 A.D.3d at 683).
Contrary to the defendant's further contention, the Supreme Court properly denied his application for a downward departure. While advanced age may be a basis for a downward departure, the defendant failed to establish that this factor minimized his risk of reoffense (see People v Pou, 206 A.D.3d 766, 768; People v West, 189 A.D.3d 1481, 1483). Moreover, the defendant failed to demonstrate that his response to sex offender treatment was "exceptional" (People v Centeno, 210 A.D.3d 812, 814; see People v Barrott, 199 A.D.3d 1029, 1030), and failed to establish his educational and vocational achievements while incarcerated by a preponderance of the evidence (see People v Musmacker, 213 A.D.3d 784, 786).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see People v Baker, 221 A.D.3d 916; People v Adams, 220 A.D.3d 953, 954).
IANNACCI, J.P., FORD, TAYLOR and LOVE, JJ., concur.