PEOPLE v. BRANDT (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated September 15, 2021, 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.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), after a hearing, the Supreme Court assessed the defendant 70 points, applied an automatic override based upon the defendant's making of a recent threat that he will reoffend by committing a sexual or violent crime, resulting in a presumptive designation as a level three sex offender, and designated him a level three sex offender.  At the SORA hearing, the defendant did not seek a downward departure from the presumptive risk level resulting from the override but instead contended that the override should not be applied.  The defendant also challenged the assessment of points under risk factor 12.  On appeal, the defendant reiterates those contentions.  He also contends, for the first time on appeal, that the court should have granted a downward departure from the presumptive risk level.

The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]).  The People bear the burden of proving the applicability of a particular override by clear and convincing evidence (see Correction Law § 168–n;  People v. Locklear, 154 AD3d 888, 889;  People v. Fessel, 149 AD3d 1113, 1114;  People v. Lobello, 123 AD3d 993, 994).  “[O]nce the People have sustained their burden of proving the applicability of an override, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override;  the application of the override is automatic’ ” (People v. Broadus, 142 AD3d 595, 595–596, quoting People v. Gordon, 133 AD3d 835, 836;  see People v. Johnson, 135 AD3d 720, 720–721).  “ ‘However, the application of an override merely renders the defendant a presumptive level three offender, and a court may nevertheless depart from the presumptive risk level where the circumstances warrant such a departure’ ” (People v. Locklear, 154 AD3d at 889, quoting People v. Johnson, 135 AD3d at 721).

Here, the People sought to establish the applicability of the third override, which is applicable if the offender has made a recent threat that he or she will reoffend by committing a sexual or violent crime (see Guidelines at 3–4).  The Guidelines note that “if the threat is recent enough that there is cause to believe that the offender may act upon it, an override is warranted” (id. at 19;  see People v. Thompson, 34 AD3d 661, 662).  Here, the People established by clear and convincing evidence the applicability of the third override (see People v. Lobello, 123 AD3d at 994;  People v. Eaton, 105 AD3d 722, 723;  cf.  People v. Thompson, 34 AD3d at 662).  In response, the defendant failed to seek a downward departure from the presumptive risk level.

Contrary to the defendant's contention, the Supreme Court properly assessed 10 points under risk factor 12, as the People established by clear and convincing evidence that the defendant failed to accept responsibility for his actions (see People v. Gonzalez, 194 AD3d 1083, 1083;  People v. Berdejo, 192 AD3d 923, 924).  In any event, since the defendant was a presumptive level three sex offender pursuant to an automatic override, the points assessed on the risk assessment instrument were irrelevant (see People v. Hraklis, 214 AD3d 681, 681;  People v. Wolm, 209 AD3d 682, 683).

The defendant's contention that he is entitled to a downward departure is unpreserved for appellate review and, in any event, without merit (see People v. Quinones, 157 AD3d 834, 834;  People v. Sweat, 147 AD3d 802, 802).

Accordingly, the Supreme Court properly designated the defendant a level three sex offender.

IANNACCI, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.