PEOPLE v. SHACKELFORD (2023)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Chris Ann Kelley, J.), dated June 12, 2020, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

At a hearing to designate the defendant's risk level pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the People sought, without prior notice, an upward departure from the defendant's presumptive risk level.  The defendant declined the County Court's offer to adjourn the hearing and advised the court that he waived his right to prior notice of the People's upward departure application (see Correction Law § 168–n[3]).  The defendant opposed the upward departure application and sought a downward departure.  The court granted the People's application, denied the defendant's application, and designated the defendant a level three sex offender.  The defendant appeals.

Contrary to the defendant's contention, the record demonstrated that his express waiver of his notice rights was knowing, voluntary, and intelligent (see People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807;  see also People v. Callanan, 195 A.D.3d 958, 145 N.Y.S.3d 856).  Specifically, the record demonstrates that the defendant knew of and understood his notice rights and voluntarily decided, after consultation with his counsel, that waiving those rights and proceeding with the SORA hearing that day would be in his best interests.

Where the People seek an upward departure from the presumptive SORA risk level they have the initial burden of (1) identifying, as a matter of law, an appropriate aggravating factor, namely, a factor which tends to establish a higher 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 clear and convincing evidence (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Wyatt, 89 A.D.3d 112, 123–124, 931 N.Y.S.2d 85;  see also Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006]).  If the People meet their initial burden, the court must exercise its discretion by weighing the aggravating and any mitigating factors “to determine whether the totality of the circumstances warrants a departure to avoid an [under-assessment] of the defendant's dangerousness and risk of sexual recidivism” (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, the defendant's conduct of writing the victim a letter threatening to have her deported in connection with this case and to kill her and her family, conduct of a kind that can only serve to decrease the likelihood that a victim will report or participate in the prosecution of a sex offense, tended to establish a higher likelihood of reoffense or danger to the community, so as to constitute a proper aggravating factor (see People v. Auger, 162 A.D.3d 1082, 1083, 80 N.Y.S.3d 334).  Furthermore, the County Court properly exercised its discretion in upwardly departing from the defendant's presumptive risk level based upon this factor (see id.).

The defendant's remaining contention is without merit.

Accordingly, we affirm the order designating the defendant a level three sex offender.

IANNACCI, J.P., WOOTEN, VOUTSINAS and WAN, JJ., concur.