Opinion
2021–00701
02-08-2023
PEOPLE of State of New York, respondent, v. Robert MUSMACKER, appellant.
Salvatore C. Adamo, New York, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Grazia DiVincenzo and Lauren Tan of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Grazia DiVincenzo and Lauren Tan of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated December 1, 2020, 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.
In 2010, the defendant was convicted, upon his plea of guilty, of reckless endangerment in the first degree (nine counts) ( Penal Law § 120.25 ), criminal sexual act in the third degree (six counts) (id. § 130.40[2]), endangering the welfare of a child (six counts) (id. § 260.10[1]), and several traffic violations. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant a total of 135 points, resulting in his presumptive designation as a level three sex offender. The court further determined that, based upon the defendant's prior felony sex crime conviction, the defendant was appropriately designated as a presumptive level three sex offender pursuant to an automatic override (see People v. Jones, 196 A.D.3d 515, 147 N.Y.S.3d 422 ). The defendant did not object to the determination of his presumptive risk level, but sought a downward departure from the presumptive risk level, arguing that his age at the time of the SORA hearing, his achievement of a GED while incarcerated, and his positive response to sex offender treatment constituted mitigation of his risk to reoffend. The court, in effect, denied the defendant's request for a downward departure, and designated the defendant a level three sex offender. The defendant appeals.
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 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 at 4 [2006] [hereinafter Guidelines]). 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 overassessment 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 ). Here, the defendant failed to prove by a preponderance of the evidence that a downward departure was warranted. Although advanced age may constitute a basis for a downward departure (see Guidelines at 5; People v. Munoz, 155 A.D.3d 1068, 1069, 64 N.Y.S.3d 594 ), the defendant failed to demonstrate that his age at the time of the SORA hearing, 48 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense (see People v. Leung, 191 A.D.3d 1023, 1024, 142 N.Y.S.3d 95 ; People v. Lewis, 173 A.D.3d 784, 785–786, 100 N.Y.S.3d 90 ; People v. Munoz, 155 A.D.3d at 1069, 64 N.Y.S.3d 594 ). While "a defendant's response to treatment may qualify as a ground for a downward departure where the response is exceptional" ( People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561 ; see Guidelines at 17; People v. Torres, 124 A.D.3d 744, 746, 998 N.Y.S.2d 464 ), the defendant failed to submit evidence that he completed treatment and that his response to such treatment was exceptional (see People v. Centeno, 210 A.D.3d 812, 814, 178 N.Y.S.3d 535 ; People v. Lewis, 173 A.D.3d at 786, 100 N.Y.S.3d 90 ). The defendant also failed to submit evidence of his educational achievements while incarcerated and, in any event, such a factor was adequately taken into account by the Guidelines (see People v. Leung, 191 A.D.3d at 1024, 142 N.Y.S.3d 95 ; People v. Santos, 174 A.D.3d 658, 659, 102 N.Y.S.3d 272 ).
Since the defendant failed to demonstrate mitigating factors, not adequately taken into account by the Guidelines, which tended to establish a lower likelihood of reoffense or danger to the community, the Supreme Court properly, in effect, denied the defendant's request for a downward departure and designated him a level three sex offender.
BARROS, J.P., CHAMBERS, ZAYAS and VOUTSINAS, JJ., concur.