PEOPLE v. CRONIN (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated November 3, 2022.  The order, after a hearing, designated the defendant a level two 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 sodomy in the first degree (Penal Law former § 130.50[3]), course of sexual conduct against a child in the first degree (id. § 130.75[1]), sexual abuse in the first degree (id. § 130.65[3]), and endangering the welfare of a child (id. § 260.10[1]), and was sentenced to a determinate term of imprisonment of 21 years, to be followed by 5 years of postrelease supervision.  After a hearing conducted pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the Supreme Court assessed the defendant 105 points, a presumptive risk level two designation, denied the defendant's application for a downward departure to a risk level one designation, and designated the defendant a level two sex offender.

“ ‘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. Medina, 209 A.D.3d 775, 776, 174 N.Y.S.3d 901, quoting People v. Jones, 196 A.D.3d 515, 515, 147 N.Y.S.3d 422 [internal quotation marks omitted];  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v. Simms, 232 A.D.3d 815, 815, 223 N.Y.S.3d 133).  “ ‘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. Medina, 209 A.D.3d at 776, 174 N.Y.S.3d 901, quoting People v. Sofo, 168 A.D.3d 891, 891–892, 90 N.Y.S.3d 290;  see People v. Simms, 232 A.D.3d at 815, 223 N.Y.S.3d 133).

Here, the defendant failed to demonstrate that his age at the time of the SORA hearing constituted an appropriate mitigating factor (see Guidelines at 5;  People v. Medina, 225 A.D.3d 798, 798, 207 N.Y.S.3d 619;  People v. Adams, 220 A.D.3d 953, 954, 199 N.Y.S.3d 121).  Moreover, the purported mitigating factor consisting of the defendant's participation in sex offender treatment was adequately taken into account by the Guidelines (see People v. Pareja–Hidalgo, 222 A.D.3d 892, 894, 203 N.Y.S.3d 109), and the defendant failed to otherwise establish that his response to such treatment was exceptional (see id. at 893, 203 N.Y.S.3d 109;  People v. Saunders, 209 A.D.3d 776, 778, 174 N.Y.S.3d 899).  Upon considering the other mitigating factors identified by the defendant, the totality of the circumstances did not warrant a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v. Pareja–Hidalgo, 222 A.D.3d at 894, 203 N.Y.S.3d 109;  People v. Drayton, 208 A.D.3d 903, 173 N.Y.S.3d 346).  Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level two designation.

The defendant's remaining contention is without merit.

IANNACCI, J.P., CHRISTOPHER, DOWLING and HOM, JJ., concur.