| People v Johnson |
| 2016 NY Slip Op 00164 |
| Decided on January 13, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
2015-00750
v
Terrance Johnson, appellant.
Lynn W. L. Fahey, New York, NY (Benjamin S. Litman of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Craig Marinaro on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated January 14, 2015, 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.
The defendant was convicted of rape in the third degree and sentenced to a term of imprisonment plus postrelease supervision. Prior to his release from prison, the Supreme Court conducted a proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA). The defendant was presumptively a level three sex offender pursuant to an automatic override addressing prior felony convictions for sex crimes (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; hereinafter Guidelines). The defendant did not contest the applicability of the automatic override. However, he requested a downward departure from his presumptive designation as a level three sex offender. After a hearing, the Supreme Court denied the defendant's request for a downward departure and adjudicated him a level three sex offender. On appeal, the defendant contends that the Supreme Court should have granted his request for a downward departure from his presumptive risk level.
"The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three" (People v Lobello, 123 AD3d 993, 994; see People v Long, 129 AD3d 687, 687). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" (People v Lobello, 123 AD3d at 994; see Correction Law § 168-n[3]). Once the People have sustained this burden, "a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic" (People v Gordon, 133 AD3d 835, 836). However, the application of an override merely renders the defendant a presumptive level three offender, and a court may nevertheless depart from the presumptive risk level where the circumstances warrant such a departure (see id. at 836-837).
"Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level" (People v Gillotti, 23 NY3d 841, 861). These analytical steps apply "[r]egardless of whether the presumptive risk level has been determined by the assessment of points or the application of an override" (People v Gordon, 133 AD3d at 836).
"At the first step, the court must decide whether the . . . mitigating circumstances [*2]alleged . . . are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines" (People v Gillotti, 23 NY3d at 861; see Guidelines at 4). "At the second step, the court must decide whether the [defendant] has adduced sufficient evidence to meet [his or her] burden of proof in establishing that the alleged . . . mitigating circumstances actually exist in the case at hand" (People v Gillotti, 23 NY3d at 861; see Guidelines at 4, 7). "[A] defendant must prove the existence of the mitigating circumstances . . . by a . . . preponderance of the evidence" (People v Gillotti, 23 NY3d at 864).
If the defendant "surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure" (id. at 861). "Thus, at the third step, the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism" (id.).
Here, the defendant failed to establish, by a preponderance of the evidence, the applicability of a mitigating circumstance that was "not adequately taken into account by the guidelines" (id.; see Guidelines at 4, 7). In light of this failure, the Supreme Court lacked the discretion to downwardly depart from the presumptive risk level (see People v Gillotti, 23 NY3d at 861). Accordingly, the Supreme Court properly denied the defendant's request for a downward departure and adjudicated him a level three sex offender (see People v Rodriguez, 127 AD3d 715, 715; People v Goods, 121 AD3d 660, 660).
In light of our determination, we need not address the defendant's remaining contention.
DILLON, J.P., DICKERSON, MILLER and DUFFY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court