Opinion
15120 Ind. No. 6551/02 Case No. 2019-5132
01-20-2022
The PEOPLE of the State of New York, Respondent, v. Mario TINGLING, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Kapnick, J.P., Singh, Moulton, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Juan M. Merchan, J.), entered on or about May 3, 2019, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
We agree that defendant should not have been assessed 25 points under the risk factor for sexual contact based on a theory of accessorial liability for promoting the prostitution of a 15–year–old girl. The People failed to prove by clear and convincing evidence that defendant assisted customers in obtaining the services of the victim or shared the necessary intent with his victim's customers to support the assessment of points under this factor. Defendant did not know the identity of his victim's customers, was not present during the sexual conduct, and did not know if sexual contact would actually occur (see People v. S.G., 4 Misc.3d 563, 776 N.Y.S.2d 449 [Sup. Ct., N.Y. County 2004] ; see also People v. Canady, 195 A.D.3d 752, 753, 145 N.Y.S.3d 409 [2d Dept. 2021] ; People v. Blue, 186 A.D.3d 1088, 1090, 128 N.Y.S.3d 765 [4th Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6877776 [2020] ).
Nevertheless, even without those points defendant remains a level two offender, and even with the corrected point score we find no basis for a downward departure or any further proceedings (see generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Defendant has not demonstrated that the mitigating factors he cites have actually reduced his risk of reoffense to a degree that would warrant a departure. In any event, these factors are outweighed by aggravating factors.