Opinion
356 KA 19-01728
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Richard L. SCOTT, Defendant-Appellant.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal 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 a conviction arising from his possession of child pornography on his computer, defendant contends that County Court erred in accepting the People's recommended risk assessment instrument score that rendered him a presumptive level two risk. We reject that contention.
Defendant first contends that the assessment of 30 points under risk factor three for having three or more victims is not supported by the requisite clear and convincing evidence because the People failed to substantiate the number of victims with sufficient admissible evidence. That contention, however, is not preserved for our review because defendant did not specifically oppose the People's request for the assessment of such points on the ground advanced on appeal (see People v. Gillotti , 23 N.Y.3d 841, 854, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Leach , 158 A.D.3d 1240, 1240, 70 N.Y.S.3d 734 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013055 [2018] ). In any event, defendant's contention lacks merit. The statements in the case summary and presentence report that defendant possessed more than 40 images of child pornography constitute reliable hearsay (see People v. Mingo , 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; People v. Rivera , 111 A.D.3d 1275, 1276, 974 N.Y.S.2d 812 [4th Dept. 2013], lv denied 22 N.Y.3d 861, 2014 WL 552778 [2014] ), and defendant did not dispute during the SORA proceeding that the images depicted three or more victims (see People v. Rodriguez , 147 A.D.3d 1513, 1513, 46 N.Y.S.3d 815 [4th Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 1843528 [2017] ; People v. Graziano , 140 A.D.3d 1541, 1542, 35 N.Y.S.3d 739 [3d Dept. 2016], lv denied 28 N.Y.3d 909, 2016 WL 6840021 [2016] ).
Defendant next contends that the court erred in assessing 30 points under risk factor five because the proof is insufficient to establish that the images depicted a victim of 10 years old or younger. Even assuming, arguendo, that defendant preserved that contention for our review, we conclude that it lacks merit. "Facts ... elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated" at a SORA hearing ( Correction Law § 168-n [3] ). Here, the evidence established that defendant pleaded guilty to possessing a sexual performance by a child ( Penal Law § 263.16 ), and he does not dispute that, during the plea colloquy with respect to that crime, he admitted possessing an image depicting a child less than 10 years old (see People v. Andrews , 136 A.D.3d 880, 880, 24 N.Y.S.3d 920 [2d Dept. 2016], lv denied 27 N.Y.3d 905, 2016 WL 2354706 [2016] ).
Defendant further contends that the court erred in denying his request for a downward departure from his presumptive risk level. Initially, although defendant correctly asserts that the court should have applied a preponderance of the evidence standard to his request for a downward departure, rather than a clear and convincing evidence standard (see Gillotti , 23 N.Y.3d at 860-861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), we need not remit the matter because the record is sufficient to enable us to review defendant's contention under the proper standard (see People v. Merkley , 125 A.D.3d 1479, 1479, 3 N.Y.S.3d 848 [4th Dept. 2015] ).
With respect to that review, we conclude that some of the purported mitigating circumstances identified by defendant, such as his lack of drug or alcohol abuse and satisfactory conduct while confined, were adequately taken into account in the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15-17 [2006] [Guidelines]; People v. Davis , 170 A.D.3d 1519, 1519-1520, 94 N.Y.S.3d 422 [4th Dept. 2019], lv denied 33 N.Y.3d 907, 2019 WL 2439978 [2019] ). Next, while an offender's response to treatment, "if exceptional" (Guidelines at 17), may constitute a mitigating factor to serve as the basis for a downward departure, we conclude that, here, defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional (see Davis , 170 A.D.3d at 1520, 94 N.Y.S.3d 422 ; People v. Bernecky , 161 A.D.3d 1540, 1541, 76 N.Y.S.3d 723 [4th Dept. 2018], lv denied 32 N.Y.3d 901, 2018 WL 4135030 [2018] ). Although defendant also contends that his age and health are mitigating factors warranting a downward departure, he failed to establish that he has "physical conditions that minimize [the] risk of re-offense" ( Correction Law § 168-l [5] [d] ; see Guidelines at 5; People v. Smith , 108 A.D.3d 1215, 1216, 969 N.Y.S.2d 369 [4th Dept. 2013], lv denied 22 N.Y.3d 856, 2013 WL 6097228 [2013] ). Finally, to the extent that defendant otherwise established the existence of appropriate mitigating circumstances, we conclude upon examining all of the relevant circumstances that a downward departure is not warranted (see Bernecky , 161 A.D.3d at 1541, 76 N.Y.S.3d 723 ; see generally Gillotti , 23 N.Y.3d at 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).