PEOPLE v. HARRIS (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 under the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court erred in refusing to grant him a downward departure from his presumptive risk level. We reject that contention.

Preliminarily, even assuming, arguendo, that the court violated Correction Law § 168-n (3) by failing to adequately set forth the findings of fact and conclusions of law on which it based its determination to deny defendant's request for a downward departure (see People v. Dean, 169 A.D.3d 1414, 1415, 91 N.Y.S.3d 651 [4th Dept. 2019]), we conclude that the record before us is sufficient to enable us to make our own findings of fact and conclusions of law, thus rendering remittal unnecessary (see People v. Simmons, 195 A.D.3d 1566, 1567, 148 N.Y.S.3d 805 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5473136 [2021]).

On the merits, we conclude that many of the purported mitigating circumstances alleged by defendant, including his acceptance of responsibility, release with specialized supervision, performance in educational and vocational programs, and participation in treatment programs, do not constitute proper mitigating circumstances inasmuch as they are already adequately taken into account by the guidelines (see People v. Forshey, 201 A.D.3d 1352, 1353, 158 N.Y.S.3d 673 [4th Dept. 2022], lv denied 38 N.Y.3d 907, 2022 WL 1573418 [2022]; People v. Maus, 195 A.D.3d 1438, 1438-1439, 145 N.Y.S.3d 455 [4th Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4782635 [2021]; People v. Davis, 170 A.D.3d 1519, 1519-1520, 94 N.Y.S.3d 422 [4th Dept. 2019], lv denied 33 N.Y.3d 907, 2019 WL 2439978 [2019]; People v. Curry, 158 A.D.3d 52, 62, 68 N.Y.S.3d 483 [2d Dept. 2017], lv denied 31 N.Y.3d 905, 2018 WL 2012991 [2018]).

Next, “while an offender's response to treatment, ‘if exceptional’ ․, may constitute a mitigating factor to serve as the basis for a downward departure” (People v. Scott, 186 A.D.3d 1052, 1054, 128 N.Y.S.3d 763 [4th Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878405 [2020], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]), we conclude that, here, defendant failed to prove by the requisite preponderance of the evidence (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]) that his response to treatment was exceptional (see People v. Antonetti, 188 A.D.3d 1630, 1631, 134 N.Y.S.3d 601 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1217106 [2021]; Scott, 186 A.D.3d at 1054, 128 N.Y.S.3d 763; People v. June, 150 A.D.3d 1701, 1702, 54 N.Y.S.3d 253 [4th Dept. 2017]). In addition, although defendant's alleged past participation in volunteer activities reflective of his empathy and good character constitutes a proper mitigating circumstance (see Gillotti, 23 N.Y.3d at 864, 994 N.Y.S.2d 1, 18 N.E.3d 701), we conclude that defendant failed to establish the existence of that mitigating circumstance by a preponderance of the evidence inasmuch as it is based exclusively on a brief, self-serving statement that defendant made during his testimony at the hearing (see June, 150 A.D.3d at 1702, 54 N.Y.S.3d 253; People v. Martinez, 104 A.D.3d 924, 924-925, 962 N.Y.S.2d 336 [2d Dept. 2013], lv denied 21 N.Y.3d 857, 2013 WL 2395742 [2013]). Defendant further asserts that a downward departure is warranted because the instant offense did not involve forcible compulsion and the victim's lack of consent was based only on her age. “[T]he nonforcible nature of the offense may be a mitigating factor” (People v. Askins, 148 A.D.3d 1598, 1599, 50 N.Y.S.3d 704 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2467479 [2017]), particularly where there is a “relatively slight age difference between [the offender] and the victim” and “the victim's lack of consent was premised only on [the] inability to consent by virtue of ․ age” (People v. George, 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 [4th Dept. 2016]; see People v. Goossens, 75 A.D.3d 1171, 1172, 904 N.Y.S.2d 858 [4th Dept. 2010]). Here, however, despite the lack of forcible compulsion, we conclude that defendant failed to establish the existence of the subject mitigating circumstance given the age disparity between the nearly 31-year-old defendant and the 14-year-old victim, the circumstances surrounding the oral sexual conduct, and the fact that defendant had previously been convicted of a felony sex crime for having sexual intercourse with a 13-year-old victim (see People v. Catalano, 178 A.D.3d 1460, 1461, 112 N.Y.S.3d 638 [4th Dept. 2019], lv denied 35 N.Y.3d 906, 2020 WL 3096648 [2020]; People v. Love, 175 A.D.3d 1835, 1835, 109 N.Y.S.3d 811 [4th Dept. 2019], lv denied 34 N.Y.3d 910, 2020 WL 772876 [2020]; cf. People v. Stevens, 201 A.D.3d 1344, 1345, 158 N.Y.S.3d 676 [4th Dept. 2022]; George, 141 A.D.3d at 1178, 35 N.Y.S.3d 625; Goossens, 75 A.D.3d at 1172, 904 N.Y.S.2d 858).

Finally, even if defendant surmounted the first two steps of the analysis (see generally Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701), upon weighing the mitigating circumstances against the aggravating circumstances—most prominently defendant's “ ‘overall criminal history’ ” (People v. Duryee, 130 A.D.3d 1487, 1488, 12 N.Y.S.3d 731 [4th Dept. 2015]), including his prior failures to register a change of address as a sex offender (see People v. Perez, 158 A.D.3d 1070, 1071, 70 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013412 [2018])—we conclude that the totality of the circumstances establishes that defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism (see People v. Gatling, 204 A.D.3d 1428, 1430, 165 N.Y.S.3d 802 [4th Dept. 2022], lv denied 38 N.Y.3d 912, 2022 WL 2838332 [2022]; People v. Burgess, 191 A.D.3d 1256, 1257, 137 N.Y.S.3d 781 [4th Dept. 2021]; see generally People v. Sincerbeaux, 27 N.Y.3d 683, 690-691, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016]).