Opinion
2017–07068
04-10-2019
PEOPLE of State of New York, respondent, v. Benjamin LEHMANN, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the order is affirmed, without costs or disbursements.
A defendant seeking a downward departure from the presumptive risk level 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 [Sex Offender Registration Act (hereinafter SORA) ] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" ( People v. Wyatt , 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter Guidelines] at 4 [2006] ). If the defendant makes that twofold showing, 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 over-assessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Champagne , 140 A.D.3d 719, 720, 31 N.Y.S.3d 218 ).
The grounds the defendant raises on appeal in support of his contention that the County Court should have granted his application for a downward departure are unpreserved for appellate review, as he did not raise these grounds at the SORA hearing (see People v. Joseph , 163 A.D.3d 594, 76 N.Y.S.3d 829 ; People v. Uphael , 140 A.D.3d 1143, 1145, 35 N.Y.S.3d 194 ; People v. Figueroa , 138 A.D.3d 708, 27 N.Y.S.3d 885 ). In any event, the defendant's contentions on appeal do not demonstrate that a downward departure was warranted.
The defendant contends that the victims' lack of consent was due only to an inability to consent by virtue of their age. " ‘[A] court may choose to depart downward in an appropriate case and in those instances where (1) the victim's lack of consent is due only to inability to consent by virtue of age and (2) scoring 25 points [under risk factor 2 of the risk assessment instrument] results in an over-assessment of the offender's risk to public safety’ " ( People v. Garner , 163 A.D.3d 1009, 1009, 81 N.Y.S.3d 572, quoting Guidelines at 9; see People v. Quirindongo , 153 A.D.3d 863, 863, 57 N.Y.S.3d 902 ). Here, the defendant failed to meet his burden of establishing by a preponderance of the evidence that the victims' lack of consent was " ‘due only to inability to consent by virtue of age’ and that the points under risk factor 2 resulted in an ‘over-assessment,’ of his risk to public safety" ( People v. Bowden , 88 A.D.3d 972, 973, 931 N.Y.S.2d 640 ). The other factors identified by the defendant were already taken into account by the Guidelines (see People v. DeDona , 102 A.D.3d 58, 71, 954 N.Y.S.2d 541 ; People v. Walker , 47 A.D.3d 692, 694, 850 N.Y.S.2d 494 ), or do not warrant departure from the presumptive risk level under the circumstances.
Accordingly, we agree with the County Court's determination designating the defendant a level two sex offender.
LEVENTHAL, J.P., ROMAN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.