PEOPLE v. WRIGHT (2023)

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 three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that he met his initial burden of establishing a mitigating factor under steps one and two of the analysis required for a downward departure, and that County Court erred in failing to weigh the mitigating and aggravating factors under step three of the analysis. We agree. A sex offender seeking a downward departure 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 [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Sanders, 196 A.D.3d 1066, 1066, 147 N.Y.S.3d 482 [4th Dept. 2021], lv denied 37 N.Y.3d 916, 2021 WL 5934264 [2021] [internal quotation marks omitted]; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Defendant met that initial burden by establishing, by a preponderance of the evidence, that he has not been convicted of any sex offenses while at liberty without supervision for an extended period of time (see People v. Edwards, 200 A.D.3d 1594, 1595, 159 N.Y.S.3d 292 [4th Dept. 2021]; People v. Souverain, 171 A.D.3d 1225, 1226, 99 N.Y.S.3d 59 [2d Dept. 2019], lv denied 33 N.Y.3d 913, 2019 WL 4267872 [2019]; People v. Sotomayer, 143 A.D.3d 686, 687, 38 N.Y.S.3d 271 [2d Dept. 2016]). Where, as here, a defendant meets the initial burden, under step three of the analysis “ ‘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’ ” (Edwards, 200 A.D.3d at 1595, 159 N.Y.S.3d 292; see Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701). Inasmuch as the court incorrectly determined that defendant failed to identify a mitigating factor not adequately taken into account by the SORA Guidelines, it did not exercise its discretion under the third step of the analysis (see Edwards, 200 A.D.3d at 1595-1596, 159 N.Y.S.3d 292; see generally Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Where, however, the record is sufficient for us to make our own findings of fact and conclusions of law, we may review a defendant's request for a downward departure instead of remitting (see People v. Cornwell, 213 A.D.3d 1239, 1240, 181 N.Y.S.3d 497 [4th Dept. 2023]; People v. Taylor, 198 A.D.3d 1369, 1370, 154 N.Y.S.3d 575 [4th Dept. 2021], lv denied 38 N.Y.3d 905, 2022 WL 1222719 [2022]; People v. Chrisley, 193 A.D.3d 1422, 1425, 147 N.Y.S.3d 819 [4th Dept. 2021], lv denied 37 N.Y.3d 909, 2021 WL 4188825 [2021]; cf. Edwards, 200 A.D.3d at 1596, 159 N.Y.S.3d 292). We conclude that the mitigating factor of defendant's lack of convictions for sex offenses for over six years since his release without supervision does not outweigh the aggravating factors of the heinous nature of the underlying sex offense and defendant's conduct while on probation, which included noncompliance with sex offender registration requirements (see People v. Garcia, 212 A.D.3d 468, 469, 179 N.Y.S.3d 584 [1st Dept. 2023]; People v. Lopez, 154 A.D.3d 531, 532, 61 N.Y.S.3d 883 [1st Dept. 2017]; People v. Gonzalez, 138 A.D.3d 814, 815, 29 N.Y.S.3d 542 [2d Dept. 2016], lv denied 27 N.Y.3d 913, 2016 WL 4533489 [2016]). We therefore conclude, after weighing the aggravating and mitigating factors, that the totality of the circumstances does not warrant a downward departure to level two or to level one (see Cornwell, 213 A.D.3d at 1240, 181 N.Y.S.3d 497; Taylor, 198 A.D.3d at 1370, 154 N.Y.S.3d 575).