Opinion
641 KA 19-01431
07-09-2021
The PEOPLE of the State of New York, Respondent, v. Brian SANDERS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ) after his conviction of rape in the third degree for engaging in sexual intercourse with a 16-year-old girl when he was 32 years old. We reject defendant's contention that County Court erred in refusing to grant him a downward departure from his presumptive risk level. Defendant had 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. Peoples , 189 A.D.3d 1282, 1282, 137 N.Y.S.3d 381 [2d Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1218245 [2021] ; see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Slishevsky , 174 A.D.3d 1399, 1400, 103 N.Y.S.3d 739 [4th Dept. 2019], lv denied 34 N.Y.3d 908, 2020 WL 205912 [2020] ).
At the SORA hearing, defendant argued that he should be granted a downward departure because there were no allegations that he was abusing drugs or alcohol at the time of the offense. In its decision denying defendant's request for a downward departure, the court found that marihuana "was found in the room where ... defendant had sex with the victim, thus the use of drugs may very well have been a component of the offense." As defendant contends and the People correctly concede, there is no record support for the court's statement that marihuana was found in the room where defendant had sexual intercourse with the victim. Nevertheless, we conclude that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Smith , 122 A.D.3d 1325, 1326, 995 N.Y.S.2d 890 [4th Dept. 2014] ). The fact that alcohol and drug use may not have been a factor in the commission of the crime is not an appropriate mitigating factor for a downward departure inasmuch as it does not tend "to establish a lower likelihood of reoffense or danger to the community" ( id. at 1325, 995 N.Y.S.2d 890 [internal quotation marks omitted]). Moreover, the court examined the "totality of the circumstances" ( Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), including defendant's extensive criminal history, in concluding that a downward departure was not warranted here.