PEOPLE v. SKIPPER (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Joseph A. Zayas, J.), dated April 28, 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.

The defendant was convicted, after a jury trial, of three counts of sodomy in the first degree (former Penal Law § 130.50[1]), two counts of kidnapping in the second degree (Penal Law § 135.20), and two counts of assault in the second degree (id. § 120.05[2], [6]).  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the Supreme Court assessed the defendant 130 points, denied the defendant's application for a downward departure from his presumptive risk level, and designated him a level three 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. Coleman, 225 A.D.3d 792, 794, 207 N.Y.S.3d 602, quoting People v. Downes, 216 A.D.3d 1183, 1183–1184, 191 N.Y.S.3d 72 [internal quotation marks omitted];  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v. Gillotti, 23 N.Y.3d 841, 860, 994 N.Y.S.2d 1, 18 N.E.3d 701).  “ ‘If the defendant makes that twofold showing, the SORA court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant's dangerousness and risk of sexual recidivism’ ” (People v. Coleman, 225 A.D.3d at 794, 207 N.Y.S.3d 602, quoting People v. Downes, 216 A.D.3d at 1184, 191 N.Y.S.3d 72 [internal quotation marks omitted];  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Here, most of the alleged mitigating factors identified by the defendant, including his vocational achievements while incarcerated, alleged exemplary disciplinary record, expression of remorse, acceptance of responsibility, supportive family, and the strict supervision that he will be under on parole, were adequately taken into account by the Guidelines (see Guidelines at 4;  People v. Laskaris, 231 A.D.3d 1173, 219 N.Y.S.3d 169;  People v. Infantino, 215 A.D.3d 768, 771, 185 N.Y.S.3d 692;  People v. Barrott, 199 A.D.3d 1029, 1030, 154 N.Y.S.3d 803;  People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170).  Moreover, the defendant failed to demonstrate how his family support established a lower likelihood of reoffense or danger to the community (see People v. Parisi, 212 A.D.3d 666, 668, 181 N.Y.S.3d 620).

While a defendant's response to sex offender treatment may qualify as a ground for a downward departure where the response is “exceptional” (Guidelines at 17), here, contrary to the Supreme Court's finding, the defendant failed to demonstrate by a preponderance of the evidence that his “ ‘response to treatment, while positive, was exceptional’ ” (People v. Coleman, 225 A.D.3d at 794, 207 N.Y.S.3d 602, quoting People v. Smith, 194 A.D.3d 767, 768, 143 N.Y.S.3d 560 [internal quotation marks omitted]).  Further, the defendant failed to establish that his response to substance abuse treatment was exceptional (see People v. Gonsales, 203 A.D.3d 760, 761, 160 N.Y.S.3d 620;  People v. Herbert, 186 A.D.3d 1732, 1733, 129 N.Y.S.3d 792).

Although “advanced age” may constitute a basis for a downward departure (Guidelines at 5), the defendant failed to demonstrate that his age at the time of the SORA hearing, 58 years old, constituted an appropriate mitigating factor that minimized his risk of reoffense (see People v. Haims, 203 A.D.3d 1184, 1186, 163 N.Y.S.3d 443).

Moreover, while “[a]n offender's rehabilitation as evidenced by the totality of the record may, under some circumstances, constitute a proper mitigating factor for a downward departure,” the defendant did not prove by a preponderance of the evidence the facts in support of this alleged mitigating factor (People v. Santogual, 157 A.D.3d 737, 738, 66 N.Y.S.3d 616;  see People v. Coleman, 225 A.D.3d at 795, 207 N.Y.S.3d 602).

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level three sex offender.

IANNACCI, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.