PEOPLE v. TOLLIVER (2026)

Appeal from order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about December 1, 2017, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law article 6–C), unanimously affirmed, without costs.

We previously held this appeal in abeyance and remitted the appealed-from order to the SORA court “to specify the required findings and conclusions, based on the evidence already introduced” (People v. Tolliver, 234 A.D.3d 639, 640, 226 N.Y.S.3d 69 [1st Dept 2025] [internal quotation marks omitted] ).  We found that the SORA court's statement at the conclusion of the hearing that “[t]he People have met their burden of proof of clear and convincing evidence, that 135 points were properly assessed, which corresponds to a Level 3 sex offender designation” did not “ ‘adequately set forth the findings of fact and conclusions of law on which it based its decision’ to assess the points at issue on appeal and deny defendant's motion for a downward departure” (id. at 639–640, 226 N.Y.S.3d 69 [internal quotation marks omitted] ).  The SORA court's decision on remand, rendered August 27, 2025, cures this defect.

The SORA court's assessment of 15 points under risk factor 9 and 10 points under risk factor 10 were supported by clear and convincing evidence that defendant was convicted of felony Burglary in the State of Georgia and committed the instant offense within three years of that felony and less than four months after his release to parole for the Georgia felony (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 14 [2006] ).

Clear and convincing evidence also established that defendant had a history of drug abuse, which supports the SORA court's assessment of 15 points under risk factor 11.  Specifically, as reflected in the Case Summary (see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ), defendant had a long history of drug abuse, incurred five drug-related sanctions while incarcerated (see People v. Woodward, 197 A.D.3d 1075, 1075, 153 N.Y.S.3d 473 [1st Dept 2021], lv denied 37 N.Y.3d 919, 183 N.E.3d 1216 [2022] ) and admitted that he “abused angel dust and marijuana for several years and at the time of his arrest was using two bags of angel dust per day” (see People v. Smith, 161 A.D.3d 430, 430, 72 N.Y.S.3d 830 [1st Dept 2018], lv denied 32 N.Y.3d 901, 84 N.Y.S.3d 854, 109 N.E.3d 1154 [2018];  People v. Gonzalez, 157 A.D.3d 409, 409, 66 N.Y.S.3d 125 [1st Dept 2018], lv denied 31 N.Y.3d 901, 77 N.Y.S.3d 656, 102 N.E.3d 432 [2018] ).

Moreover, the People established that, while incarcerated, defendant incurred more than 25 Tier III sanctions and 23 Tier II sanctions, including two Tier III sanctions for a sex offense, which supports the assessment of 20 points under risk factor 13, concerning unsatisfactory conduct involving sexual misconduct while incarcerated.

While defendant challenged the foregoing determinations, he failed to offer any “contradictory documentary evidence or testimony” (People v. Diaz, 34 N.Y.3d 1179, 1181, 123 N.Y.S.3d 64, 145 N.E.3d 947 [2020] ).

Finally, the SORA court providently exercised its discretion in declining to grant a downward departure, and there is no compelling basis for this Court to exercise its discretion to grant the departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).  The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument.

We have considered defendant's remaining arguments and find them unavailing.