PEOPLE v. JOHNSON (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Donald Leo, J.), dated September 27, 2019, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the defendant was designated a level two sex offender following his conviction of rape in the second degree and forcible touching.  On appeal, the defendant contends that the Supreme Court erred in denying his request for a downward departure from his presumptive risk level.  A defendant seeking a downward departure from the presumptive risk level 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 Guidelines;  and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85;  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  see also Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]).  “If the defendant makes that twofold showing, 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” (People v. Brocato, 188 A.D.3d 728, 728–729, 131 N.Y.S.3d 645;  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Contrary to the defendant's contention, he failed to establish his entitlement to a downward departure from his presumptive risk level.  The defendant contends, with respect to his conviction of rape in the second degree, that the victim's lack of consent was due only to an inability to consent by virtue of her age.  “The Board or a court may choose to depart downward 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 [under risk factor 2 of the risk assessment instrument] results in an over-assessment of the offender's risk to public safety” (Guidelines at 9;  see People v. Permenter, 208 A.D.3d 905, 174 N.Y.S.3d 104).  Here, a downward departure is not warranted on this ground considering, among other things, the age disparity between the then 26–year–old defendant and the then 12–year–old victim (see People v. Permenter, 208 A.D.3d 905, 174 N.Y.S.3d 104;  People v. Blount, 195 A.D.3d 956, 146 N.Y.S.3d 533;  People v. Lin, 188 A.D.3d 1109, 132 N.Y.S.3d 699;  People v. Dadd, 170 A.D.3d 898, 93 N.Y.S.3d 869), as well as the fact that the defendant also committed the offense of forcible touching against another 12–year–old victim.

The defendant's lack of a prior criminal record was adequately taken into account by the Guidelines (see People v. Oyola, 217 A.D.3d 791, 793, 191 N.Y.S.3d 657;  People v. Edmee, 183 A.D.3d 766, 768, 121 N.Y.S.3d 902).

The support of the defendant's family was adequately taken into account by the Guidelines since it was relevant to his living situation upon his release from prison (see People v. Edmee, 183 A.D.3d at 767, 121 N.Y.S.3d 902).

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.

Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from the presumptive risk level and designated him a level two sex offender.

DUFFY, J.P., MALTESE, CHRISTOPHER and LANDICINO, JJ., concur.