PEOPLE v. GUILLEN BELTRE (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about July 21, 2022, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Defendant raped his live-in girlfriend's daughter hundreds of times during her pre-teen and early teenage years, impregnating the victim when she was thirteen and fifteen years old.  The record supports the court's discretionary upward departure to designate defendant a level three offender, regardless of whether the court's initial point assessment should have designated defendant a presumptive level one, as opposed to level two, offender (see People v. Newman, 71 A.D.3d 488, 488, 899 N.Y.S.2d 144 [1st Dept. 2010] [finding that, where the defendant had a lengthy pattern of sexual assault against children, “[r]egardless of whether defendant's correct point score would make him a presumptive risk level one or two offender, a discretionary upward departure to level three is warranted by aggravating factors”]).

The People proved by clear and convincing evidence that the risk assessment instrument did not adequately account for defendant's uniquely insidious, remorseless, and devastating years-long course of conduct toward the victim, during which he raped her nightly and forced her to conceal the rapes and her pregnancies (see People v. Davis, 178 A.D.3d 635, 636, 117 N.Y.S.3d 174 [1st Dept. 2019] [in affirming upward departure to level three, finding that “the court did not consider the egregiousness of defendant's conduct as a matter of ‘moral outrage,’ but for its bearing on defendant's likelihood of reoffense and the potential harm in the event of reoffense”], lv denied 35 N.Y.3d 908, 2020 WL 3422403 [2020];  see also People v. Harrell, 168 A.D.3d 890, 890, 91 N.Y.S.3d 238 [2d Dept. 2019] [affirming upward departure from level one to level three based on the defendant's conduct of sexually assaulting victim and holding her down so that accomplices could do the same], lv denied 33 N.Y.3d 904, 2019 WL 2041837 [2019]).  The People sufficiently showed that defendant's relentless campaign of sexual assault, in tandem with a myriad of additional indiscretions that evidenced defendant's contempt for the law and capacity to inflict harm, established defendant's higher likelihood of sexual recidivism or danger to the community than considered by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).

We further hold that, if we were to find that the court should have designated defendant a presumptive level one offender, our precedent in (People v. Weber, 40 N.Y.3d 206, 196 N.Y.S.3d 352, 218 N.E.3d 688 [2023]) and (People v. Reynoso, 224 A.D.3d 416, 204 N.Y.S.3d 91 [1st Dept. 2024]) does not require remand for the SORA court to rule on the application for an upward departure.  Unlike those cases, where the defendants were determined to be presumptive level three offenders and no upward departure application were therefore made, here the court already ruled that defendant's conduct warranted an upward departure to level three.  We will not infringe upon the court's discretion in this instance.