PEOPLE v. BUSTILLO (2023)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated March 4, 2022.  The order, 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.

After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), the County Court designated the defendant a level two sex offender.  The defendant appeals, arguing that the court should have granted his application for a downward departure to a level one risk designation.

Initially, contrary to the People's contention, the defendant's argument that the County Court erred in failing to grant a downward departure from his presumptive risk level is preserved for appellate review.  Defense counsel's contentions at the hearing are properly construed as requesting a downward departure (see People v. Snyder, 175 A.D.3d 1331, 1332, 107 N.Y.S.3d 403).  Moreover, the court decided the application, stating that it was denying it on the ground that the defendant “failed to establish by a preponderance of the evidence mitigating factors of a kind or ․ to a degree not adequately taken into account by the guidelines which would establish the lower likelihood of re-offense.”

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 [SORA] 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]).  “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. Khan, 182 A.D.3d 613, 614, 120 N.Y.S.3d 795;  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Here, contrary to the defendant's contention, his risk level was properly assessed.  “Although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community” (People v. Smith, 187 A.D.3d 1228, 1229, 131 N.Y.S.3d 572;  see People v. Gillotti, 23 N.Y.3d at 860, 994 N.Y.S.2d 1, 18 N.E.3d 701), a downward departure is not warranted as a matter of discretion under the circumstances of this case (see People v. Galeana, 208 A.D.3d 1372, 1373, 174 N.Y.S.3d 601;  People v. Whitney, 168 A.D.3d 776, 777, 89 N.Y.S.3d 638).

Accordingly, the County Court properly designated the defendant a level two sex offender.

DUFFY, J.P., BRATHWAITE NELSON, CHAMBERS and WARHIT, JJ., concur.