PEOPLE v. ESPINOSA (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated January 23, 2024, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the County Court assessed the defendant 80 points on the risk assessment instrument (hereinafter RAI), rendering him a presumptive level two sex offender, and denied his request for a downward departure from his presumptive risk level.  The defendant was also designated a sexually violent offender because he had been convicted of offenses enumerated in Correction Law § 168–a(3).  The defendant appeals.

The County Court properly assessed the defendant 20 points under risk factor 4 of the RAI (continuing course of sexual misconduct).  The People established by clear and convincing evidence multiple occurrences of sexual misconduct within the temporal requirement (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 10 [2006] [hereinafter Guidelines];  People v. Tewel, 229 A.D.3d 648, 649, 215 N.Y.S.3d 154;  People v. Torres, 217 A.D.3d 976, 976–977, 192 N.Y.S.3d 205;  People v. Lyons, 199 A.D.3d 722, 723, 155 N.Y.S.3d 218).

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. 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” (People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351;  see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Felton, 175 A.D.3d 734, 735, 105 N.Y.S.3d 301;  People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Contrary to the defendant's contention, the fact that the total number of points assessed to him was near the low end of the range for a presumptive level two designation did not, by itself, constitute a ground for a downward departure from the presumptive risk level (see People v. Dockery, 233 A.D.3d 808, 810, 224 N.Y.S.3d 110;  People v. Savino, 222 A.D.3d 792, 793, 202 N.Y.S.3d 383;  People v. Rucano, 213 A.D.3d 709, 711, 182 N.Y.S.3d 247).

The defendant was properly designated a sexually violent offender based upon his convictions of certain sex offenses (see Correction Law § 168–a[3];  Penal Law §§ 130.35, 130.50, 130.65, 130.75).

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

CONNOLLY, J.P., GENOVESI, DOWLING and LOVE, JJ., concur.