Opinion
No. 2020-06385
03-06-2024
The People of the State of New York, respondent, v. Simon A. Watts, appellant.
Twyla Carter, New York, NY (Svetlana M. Kornfeind of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Ellen C. Abbot of counsel; McKenzie M. Franck on the brief), for respondent.
Twyla Carter, New York, NY (Svetlana M. Kornfeind of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Ellen C. Abbot of counsel; McKenzie M. Franck on the brief), for respondent.
HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, LARA J. GENOVESI, CARL J. LANDICINO, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Michael Aloise, J.), dated April 30, 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 this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the Supreme Court assessed the defendant 110 points on the risk assessment instrument, denied his request for a downward departure from his presumptive risk level, and designated him a level three sex offender. The defendant appeals.
"In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence" (People v Levy, 192 A.D.3d 928, 929, citing Correction Law § 168-n[3]; People v Guadeloupe, 173 A.D.3d 910, 911). "'In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders..., or any other reliable source, including reliable hearsay'" (People v Vasquez, 189 A.D.3d 1480, 1481, quoting People v Luna, 187 A.D.3d 805, 806 [internal quotation marks omitted]).
Contrary to the defendant's contention, the Supreme Court properly assessed 10 points under risk factor 2 (sexual contact with victim) for contact under clothing. The assessment of these points was supported by clear and convincing evidence in the record (see People v Strong, 196 A.D.3d 707; People v Torres-Ordonez, 175 A.D.3d 595).
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; see People v Gillotti, 23 N.Y.3d 841, 861; 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" (People v Alvarado, 173 A.D.3d 909, 910; see People v Gillotti, 23 N.Y.3d at 861; People v Felton, 175 A.D.3d 734, 735; People v Champagne, 140 A.D.3d 719, 720).
Here, the defendant failed to establish by a preponderance of the evidence that a downward departure was warranted. The absence of a disciplinary record while in prison was adequately taken into account by the Guidelines, since he was not assessed additional points for conduct while confined (see People v Gillotti, 23 N.Y.3d at 861; People v Zamora, 186 A.D.3d 885; People v Santos, 174 A.D.3d 658, 659).
Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level three sex offender.
LASALLE, P.J., CONNOLLY, GENOVESI and LANDICINO, JJ., concur.