PEOPLE v. CINTRON (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about June 6, 2024, which, after a hearing, adjudicated defendant a risk level two sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), unanimously modified, on the law and the facts, to the extent of adjudicating defendant a risk level one sex offender, and otherwise affirmed, without costs.

The People did not provide clear and convincing record support for granting an upward departure based on an aggravating factor not taken into account by the risk assessment guidelines (see e.g. People v. Velasquez, 195 A.D.3d 762, 762–763, 145 N.Y.S.3d 415 [2d Dept. 2021];  People v. Mota, 165 A.D.3d 988, 989, 84 N.Y.S.3d 569 [2d Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 757739 [2019];  People v. Campbell, 98 A.D.3d 5, 13–14, 946 N.Y.S.2d 587 [2d Dept. 2012], lv denied 20 N.Y.3d 853, 2012 WL 6116677 [2012]).  The People cited uncharged criminal conduct — i.e., defendant's alleged text and social media threats to rape and kill a minor performer that are strikingly similar to the threats to the minor performer that led to the underlying conviction and requirement that defendant register as a sex offender — as an aggravating factor that provides the basis for the upward departure.  While this type of prior uncharged criminal conduct can be a valid aggravating factor not adequately accounted for in the risk assessment instrument (RAI), and thereby provide the basis for an upward departure, the record here is not sufficient to satisfy the burden of proving the facts in support of the proffered aggravating factor by clear and convincing evidence (see People v. Paterno, 203 A.D.3d 853, 160 N.Y.S.3d 894 [2d Dept. 2022]).

The other purported aggravating factors cited by the People at the SORA hearing and by the Board in its case summary were also not proven by clear and convincing evidence.

Accordingly, the court's order should be modified to designate defendant a risk level one offender.