PEOPLE v. MUSARRA (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Cassandra M. Mullen, J.), dated October 28, 2021, 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.

The defendant was convicted, upon his plea of guilty, of possessing a sexual performance by a child (Penal Law § 263.16).  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 80 points on the risk assessment instrument (hereinafter RAI), denied his request for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant appeals.

The defendant's contention that, in light of his particular offense, the assessment of points on the RAI under risk factors 3 (number of victims) and 7 (relationship with victim) violated his due process rights by shifting the burden of proof to him is unpreserved for appellate review (see People v. Gillotti, 23 N.Y.3d 841, 854, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Lawrence, 226 A.D.3d 827, 208 N.Y.S.3d 305) and, in any event, without merit (see People v. Hammack, 225 A.D.3d 795, 796, 207 N.Y.S.3d 658;  People v. Field, 214 A.D.3d 418, 184 N.Y.S.3d 338).  The Court of Appeals has rejected the premise of the defendant's contention—that the assessment of points for these factors for child pornography cases is arbitrary and unconnected to the risk of reoffense and danger to the community—concluding, instead, that while these factors “may not represent the exact same risks in child pornography cases as in those involving physical contact, the presence of th[e]se factors in child pornography cases increases the offender's potential to psychologically harm a greater number of children to a greater degree” (People v. Gillotti, 23 N.Y.3d at 857, 994 N.Y.S.2d 1, 18 N.E.3d 701).  Accordingly, the assessment of points under risk factors 3 and 7 based upon the People's clear and convincing evidence that the factors applied was not a violation of due process (see People v. Hammack, 225 A.D.3d at 796, 207 N.Y.S.3d 658 ;  People v. Field, 214 A.D.3d 418, 184 N.Y.S.3d 338).

Further, the Supreme Court properly denied the defendant's request for a downward departure.  The defendant's expression of remorse and acceptance of responsibility were already taken into account by the Guidelines (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary [hereinafter Guidelines] [2006];  People v. Skipper, 235 A.D.3d 671, 672, 227 N.Y.S.3d 639;  People v. Morales, 223 A.D.3d 850, 851, 204 N.Y.S.3d 196), he failed to establish by a preponderance of the evidence that he had an exceptional response to treatment (see People v. Fernandez, 219 A.D.3d 760, 763, 194 N.Y.S.3d 557;  People v. Nicholson, 195 A.D.3d 758, 145 N.Y.S.3d 393), the alleged support provided by his family was adequately taken into account by the Guidelines and, moreover, he failed to establish by a preponderance of the evidence that his family's support would result in a lower likelihood of reoffense or danger to the community (see People v. Gavalo, 235 A.D.3d 785, 786, 227 N.Y.S.3d 659;  People v. Skipper, 235 A.D.3d at 672, 227 N.Y.S.3d 639 ), and he failed to establish by a preponderance of the evidence that the short period of time he was at liberty without reoffense demonstrated that the RAI overstated his risk of reoffense (see People v. Williams, 208 A.D.3d 806, 807, 172 N.Y.S.3d 636;  People v. Williams, 204 A.D.3d 710, 711, 163 N.Y.S.3d 861).  Finally, although in some cases involving possession of child pornography, the assessment of points under risk factors 3 and 7 can result in an overassessment of a defendant's level of risk (see People v. Gillotti, 23 N.Y.3d at 860, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930), a downward departure was not warranted under the totality of the circumstances presented in this case, as there was no overassessment of the defendant's risk level (see People v. Benchocron, 226 A.D.3d 832, 833, 209 N.Y.S.3d 486).

IANNACCI, J.P., CHAMBERS, TAYLOR and MCCORMACK, JJ., concur.