PEOPLE v. PORTILLO PEREZ (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Rockland County (Kevin F. Russo, J.), dated August 12, 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.

In this proceeding pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the County Court assessed the defendant 80 points on the risk assessment instrument, denied his application 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 11 (drug or alcohol abuse) and the denial of his application for a downward departure.

“ ‘In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the determination sought by clear and convincing evidence’ ” (People v. Hernandez, 228 A.D.3d 965, 965, 214 N.Y.S.3d 133, quoting People v. Levy, 192 A.D.3d 928, 929, 140 N.Y.S.3d 721;  see Correction Law § 168–n[3]).  “ ‘In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ․, or any other reliable source, including reliable hearsay’ ” (People v. Coleman, 225 A.D.3d 792, 793, 207 N.Y.S.3d 602, quoting People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;  see People v. Vasquez, 189 A.D.3d 1480, 1481, 134 N.Y.S.3d 765).  Foundation testimony is unnecessary to establish the admissibility of case summaries (see People v. Mingo, 12 N.Y.3d 563, 575, 883 N.Y.S.2d 154, 910 N.E.2d 983).  However, information found in a case summary may be rejected when it is unduly speculative, its accuracy is undermined by other more compelling evidence, or it provides limited information with no additional support (see id. at 573, 883 N.Y.S.2d 154, 910 N.E.2d 983;  People v. Mabee, 69 A.D.3d 820, 820, 893 N.Y.S.2d 585).

Contrary to the defendant's contention, the County Court properly assessed 15 points under risk factor 11.  The People established by clear and convincing evidence, among other things, that alcohol was used at the time of the instant offense, that the defendant admitted to abuse of alcohol and drugs, and that the defendant was placed on a waiting list to participate in a treatment program (see People v. France, 219 A.D.3d 509, 510, 193 N.Y.S.3d 277;  People v. Alvarado, 173 A.D.3d 909, 910, 100 N.Y.S.3d 351).  In opposition, the defendant did not submit any evidence contradicting the information contained in the case summary (see People v. Mingo, 12 N.Y.3d at 575, 883 N.Y.S.2d 154, 910 N.E.2d 983;  People v. Mizrahi, 237 A.D.3d 980, 981, 233 N.Y.S.3d 101).  Under the circumstances, the case summary, standing alone, was sufficient to support the assessment of points under risk factor 11 (see People v. Pintado, 205 A.D.3d 939, 166 N.Y.S.3d 594;  People v. Aldarondo, 136 A.D.3d 770, 770–771, 24 N.Y.S.3d 531).

A defendant seeking a downward departure from the presumptive risk level has the 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. Smith, 237 A.D.3d 1230, 1231, 234 N.Y.S.3d 534 [internal quotation marks omitted];  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]).  “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 at 910, 100 N.Y.S.3d 351;  see People v. Sanchez, 231 A.D.3d 876, 877, 220 N.Y.S.3d 370).

Here, the defendant failed to demonstrate that a downward departure was warranted.  While a “ ‘defendant's response to [sex offender] treatment may qualify as a ground for a downward departure where the response is exceptional’ ” (People v. Del–Carmen, 186 A.D.3d 878, 879, 128 N.Y.S.3d 608, quoting People v. Wallace, 144 A.D.3d 775, 776, 40 N.Y.S.3d 561), the defendant failed to establish that his response to such treatment was exceptional (see People v. Magnetic, 231 A.D.3d 875, 876, 220 N.Y.S.3d 798;  People v. Coleman, 225 A.D.3d at 795, 207 N.Y.S.3d 602).

The other alleged mitigating factors identified by the defendant, namely that the defendant had no prior criminal history and will remain under supervision for 10 years following his release, were adequately taken into account by the Guidelines (see Guidelines at 13–16;  People v. Mierisch, 239 A.D.3d 776, 778, 236 N.Y.S.3d 669;  People v. Zarifa, 237 A.D.3d 1113, 1115, 233 N.Y.S.3d 331).  “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” (People v. Santos, 235 A.D.3d 788, 789, 227 N.Y.S.3d 662;  see People v. Selin–Martinez, 229 A.D.3d 646, 648, 215 N.Y.S.3d 451).

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

CONNOLLY, J.P., BRATHWAITE NELSON, HOM and GOLDBERG VELAZQUEZ, JJ., concur.