PEOPLE v. SANTOS (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated August 10, 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.

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 County Court assessed the defendant 75 points on the risk assessment instrument (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 3–4 [2006] [hereinafter Guidelines]), denied his request for a downward departure from his presumptive risk level, and designated him a level two sex offender.  On appeal, the defendant challenges the assessment of points under risk factor 14 and the denial of his application for a downward departure.

Contrary to the defendant's contention, the County Court properly assessed 15 points under risk factor 14 for release without supervision, as the People demonstrated, by clear and convincing evidence, that the defendant was released without any course of supervision (see People v. Bangura, 185 A.D.3d 972, 973, 125 N.Y.S.3d 864;  People v. Ramos, 179 A.D.3d 850, 116 N.Y.S.3d 347).

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 Guidelines at 4;  People v. Anthony, 40 N.Y.3d 976, 978, 196 N.Y.S.3d 699, 219 N.E.3d 339;  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 factors 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. Anthony, 40 N.Y.3d at 978, 196 N.Y.S.3d 699, 219 N.E.3d 339;  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).

The defendant's contention that he was entitled to a downward departure based upon his participation in sex offender treatment is unpreserved for appellate review, as he failed to raise that factor at the SORA hearing (see People v. Hernandez, 225 A.D.3d 903, 904, 207 N.Y.S.3d 664;  People v. Howard, 190 A.D.3d 773, 775, 135 N.Y.S.3d 869).  In any event, the contention is without merit.

The additional alleged mitigating factors identified by the defendant either were adequately taken into account by the Guidelines (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Permenter, 208 A.D.3d 905, 907, 174 N.Y.S.3d 104;  People v. Young, 186 A.D.3d 1546, 1548, 129 N.Y.S.3d 490) or did not warrant a downward departure (see People v. Burrowes, 177 A.D.3d 1005, 1007, 113 N.Y.S.3d 264;  People v. Saintilus, 169 A.D.3d 838, 839, 94 N.Y.S.3d 128).  Further, even if the total number of points assessed to the defendant is considered near the low end of the range for a presumptive level two designation, that fact, by itself, does not constitute a ground for a downward departure from the presumptive risk level (see People v. Selin–Martinez, 229 A.D.3d 646, 648, 215 N.Y.S.3d 451;  People v. Canales, 217 A.D.3d 785, 786, 191 N.Y.S.3d 655;  People v. Scott, 204 A.D.3d 948, 949, 164 N.Y.S.3d 851).

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

IANNACCI, J.P., BRATHWAITE NELSON, VOUTSINAS and LANDICINO, JJ., concur.