PEOPLE v. CARNEGIE (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered March 15, 2023, 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 2017, the defendant was convicted in North Carolina of second degree forcible rape, in violation of North Carolina General Statutes § 14–27.22. Upon his relocation to New York, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), which presumptively classified the defendant a level two sex offender.  At a SORA hearing, the defendant sought a downward departure from the presumptive risk level.  The Supreme Court denied the defendant's application for a downward departure and designated him a level two sex offender.  The defendant appeals.

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 6 [2006] [hereinafter Guidelines];  People v. Medina, 209 A.D.3d 775, 776, 174 N.Y.S.3d 901).  “ ‘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. Lundy, 223 A.D.3d 920, 921, 205 N.Y.S.3d 110, quoting People v. Collazo, 179 A.D.3d 1103, 1104, 114 N.Y.S.3d 675).

Here, the alleged mitigating factors consisting of the defendant's supportive family and his young age at the time of the commission of the subject sex offense were adequately taken into account by the Guidelines (see People v. Roelofsen, 195 A.D.3d 962, 963, 146 N.Y.S.3d 532;  People v. Fuhrtz, 180 A.D.3d 944, 947, 120 N.Y.S.3d 57).  Moreover, the defendant failed to demonstrate how his family support established a lower likelihood of reoffense or danger to the community (see People v. Flores–Hernandez, 219 A.D.3d 1533, 1534, 196 N.Y.S.3d 771;  People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128).  As to the defendant's age of 19 years at the time of the sex offense, an offender's age of 20 or younger at the time of the offense is deemed to be an aggravating factor rather than a mitigating factor (see Guidelines at 13;  People v. Tleis, 222 A.D.3d 1012, 1013, 203 N.Y.S.3d 142;  People v. Roelofsen, 195 A.D.3d at 963, 146 N.Y.S.3d 532).

The defendant's remaining contention is without merit.

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

BRATHWAITE NELSON, J.P., CHRISTOPHER, VOUTSINAS and HOM, JJ., concur.