PEOPLE v. LOVE (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.), defendant contends that he was entitled to a downward departure from his presumptive risk level because the victim's inability to consent was due solely to the victim's age.  We reject that contention inasmuch as defendant “failed to establish by a preponderance of the evidence any ground for a downward departure from his risk level” (People v. Gillotti, 119 A.D.3d 1390, 1391, 989 N.Y.S.2d 752 [4th Dept. 2014];  see People v. King, 148 A.D.3d 1599, 1600, 48 N.Y.S.3d 910 [4th Dept. 2017], lv denied 29 N.Y.3d 914, 2017 WL 2744683 [2017]).  “A court may choose to downwardly depart from the risk assessment ‘in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender's risk to public safety’ ” (People v. Fryer, 101 A.D.3d 835, 836, 955 N.Y.S.2d 407 [2d Dept. 2012], lv. denied 20 N.Y.3d 859, 2013 WL 518550 [2013], quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 9 [2006];  see People v. Cathy, 134 A.D.3d 1579, 1580, 22 N.Y.S.3d 747 [4th Dept. 2015]).  Here, although there was no evidence of forcible compulsion, a downward departure is not warranted given the age disparity between the then–55–year–old defendant and the 13–year–old victim and the circumstances surrounding the sexual assault (see Fryer, 101 A.D.3d at 836, 955 N.Y.S.2d 407;  People v. Modica, 80 A.D.3d 590, 592[, 914 N.Y.S.2d 266 2d Dept. 2011] ).