PEOPLE v. CORREA (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated October 20, 2022, 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 two counts of rape in the second degree.  After a hearing 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, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant appeals, contending that the court should have granted his application for a downward departure.

A defendant seeking a downward departure from a 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 Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [hereinafter Guidelines];  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 (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).  “A downward departure may be warranted where the victim's lack of consent is due only to inability to consent by virtue of age, and scoring 25 points under risk factor 2, for sexual contact with the victim, results in an overassessment” (People v. London, 202 A.D.3d 713, 714, 158 N.Y.S.3d 637 [internal quotation marks omitted];  see Guidelines at 9;  People v. Blount, 195 A.D.3d 956, 957, 146 N.Y.S.3d 533).

Here, while the defendant contends that the victim's lack of consent was due only to an inability to consent by virtue of her age and his point assessment is considered near the low end of the presumptive level two designation, under the circumstances of this case, including, among other things, the significant age disparity between the then 29–year–old defendant and the then 13–year–old victim, a downward departure was not warranted (see People v. Saul, 220 A.D.3d 892, 894, 199 N.Y.S.3d 102;  People v. Permenter, 208 A.D.3d 905, 906, 174 N.Y.S.3d 104;  People v. Emery, 204 A.D.3d 944, 945, 164 N.Y.S.3d 888;  People v. London, 202 A.D.3d at 714, 158 N.Y.S.3d 637;  People v. Zapata, 186 A.D.3d 761, 762, 127 N.Y.S.3d 280;  People v. Dadd, 170 A.D.3d 898, 899, 93 N.Y.S.3d 869;  People v. Herron, 59 A.D.3d 414, 872 N.Y.S.2d 538).

Accordingly, the County Court properly denied the defendant's application for a downward departure and properly designated him a level two sex offender.

LASALLE, P.J., CONNOLLY, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.