PEOPLE v. MAGNETIC (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), entered May 4, 2022, 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.

The defendant was convicted, upon a jury verdict, of crimes including sexual abuse in the first degree (Penal Law § 130.65).  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C [hereinafter SORA]), the Supreme Court assessed the defendant 110 points on the risk assessment instrument, denied the defendant's application for a downward departure from the presumptive risk level, and designated him a level three sex offender.  The defendant appeals.

The Supreme Court properly denied the defendant's application for a downward departure.  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 Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  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 (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Although “advanced age” can be a basis for a downward departure (Guidelines at 5;  see People v. Mitchell, 196 A.D.3d 516, 518, 146 N.Y.S.3d 851), the defendant failed to demonstrate that his age of 56 years old at the time of the SORA hearing constituted an appropriate mitigating factor that minimized his risk of reoffense (see People v. Abdullah, 210 A.D.3d 704, 706, 178 N.Y.S.3d 94;  People v. West, 189 A.D.3d 1481, 1483, 134 N.Y.S.3d 764).  Contrary to the defendant's contention, an offender's young age at the time the first sex offense was committed is taken into account by the Guidelines, and is deemed to be an aggravating factor rather than a mitigating factor (see Guidelines at 13;  People v. Alleyne, 212 A.D.3d 660, 662, 181 N.Y.S.3d 615).  Further, the remoteness of the defendant's first sex offense was adequately taken into account by risk factor 10 (recency of prior felony or sex crime) (see People v. Emery, 204 A.D.3d 944, 945, 164 N.Y.S.3d 888).  In addition, the defendant's willingness to participate in sex offender treatment was taken into account by risk factor 12 (acceptance of responsibility) (see People v. Garcia, 192 A.D.3d 833, 834, 139 N.Y.S.3d 858).  Although a defendant's response to treatment may qualify as a ground for a downward departure where the response is “exceptional,” the defendant made no showing that his response to sex offender treatment was exceptional (see People v. Rogers, 222 A.D.3d 894, 896, 203 N.Y.S.3d 106).  Also contrary to the defendant's contention, his score of 110 points—the lowest possible score within presumptive level three—does not demonstrate that a downward departure should have been granted (see People v. Rucano, 213 A.D.3d 709, 711, 182 N.Y.S.3d 247).

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

BARROS, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.