PEOPLE v. FITZPATRICK (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Westchester County (Robert J. Prisco, J.), dated May 21, 2024, 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.

On July 13, 2023, the defendant was convicted in the United States District Court for the Eastern District of Virginia, upon his plea of guilty, of, inter alia, possession of child pornography (see 18 USC § 2252[a][4][B];  [b][2]).  In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA), the County Court, after a hearing, assessed the defendant 30 points on the risk assessment instrument, rendering him a presumptive level one sex offender.  However, the court granted the People's application for an upward departure from the presumptive risk level and designated him a level two sex offender.  The defendant appeals.

“The standards required for [an upward] departure are well settled:  the court must first determine whether the aggravating factors identified by the People are, as a matter of law, of a kind or to a degree not adequately taken into account by the Guidelines” (People v. Rodriguez, 196 A.D.3d 43, 48, 148 N.Y.S.3d 247;  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines];  People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  “This is ‘a legal question for the court, based upon an interpretation of the Guidelines and SORA’ ” (People v. Rodriguez, 196 A.D.3d at 48, 148 N.Y.S.3d 247, quoting People v. Wyatt, 89 A.D.3d 112, 121, 931 N.Y.S.2d 85).  “Significantly, to permit an upward departure, the aggravating factors ‘must tend to establish a higher likelihood of reoffense or danger to the community’ ” (id. at 49, 148 N.Y.S.3d 247, quoting People v. Wyatt, 89 A.D.3d at 123, 931 N.Y.S.2d 85), “and ‘[w]here the alleged factor[s][are] taken into account by the Guidelines or [are] not related to the risk of reoffense and danger to the community, as a matter of law a departure is not warranted’ ” (id. [internal quotation marks omitted], quoting People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483).  “Next, the court must determine whether the People have established, by clear and convincing evidence, the actual existence of the aggravating factors in the particular case before the court” (id.;  see Correction Law § 168–n[3];  People v. Gillotti, 23 N.Y.3d at 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701).  “Assuming the foregoing requirements have been satisfied, the court is then vested with the discretion to grant the upward departure, but it is not obligated to do so.  Rather, in consideration of the unique circumstances presented by each case, ‘the court must exercise its discretion by weighing the aggravating ․ factors to determine whether the totality of the circumstances warrants a departure to avoid an ․ under-assessment of the defendant's dangerousness and risk of sexual recidivism’ ” (People v. Rodriguez, 196 A.D.3d at 49, 148 N.Y.S.3d 247, quoting People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  see People v. Sincerbeaux, 27 N.Y.3d 683, 690, 37 N.Y.S.3d 39, 57 N.E.3d 1076).

Here, the People established the existence of aggravating factors not adequately taken into account by the Guidelines that justified an upward departure.  Specifically, a presentence investigation report and the case summary prepared by the Board of Examiners of Sex Offenders indicated, inter alia, that the defendant was previously directed by the Federal Bureau of Investigation in 2019 to cease exchanging explicit images over the Internet, but the defendant continued to download child pornography.  Contrary to the defendant's contention, the People proved, by clear and convincing evidence, the actual existence of the aggravating factors since they were adequately described in the presentence investigation report and case summary (see People v. Curry, 208 A.D.3d 1560, 1561, 175 N.Y.S.3d 741;  People v. Vasquez, 189 A.D.3d 1480, 1481, 134 N.Y.S.3d 765).  The County Court providently exercised its discretion in concluding that the totality of the circumstances warranted an upward departure (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Burkhardt, 215 A.D.3d 696, 697, 187 N.Y.S.3d 269).

CONNOLLY, J.P., FORD, VOUTSINAS and LANDICINO, JJ., concur.