PEOPLE v. HERNANDEZ SANCHEZ (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (Christopher Hoefenkrieg, J.), dated January 4, 2023, 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 a plea of guilty, of rape in the second degree.  After a risk assessment hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the Supreme Court granted the People's application for an upward departure from the defendant's presumptive risk level one designation and designated the defendant a level two sex offender.  The defendant appeals.

The Supreme Court failed to set forth findings of fact and conclusions of law to support its determination to grant the People's request for an upward departure from the presumptive risk level, as mandated by Correction Law § 168–n(3) (see People v. Melycher, 232 A.D.3d 711, 712, 222 N.Y.S.3d 542).  However, remittal is not required because the record is sufficient for this Court to make its own findings of fact and conclusions of law (see id.;  People v. Hernandez, 213 A.D.3d 705, 706–707, 182 N.Y.S.3d 282).

“Where the People seek an upward departure, they must demonstrate that there exists an aggravating factor ‘of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’ ” (People v. Burkhardt, 215 A.D.3d 696, 697, 187 N.Y.S.3d 269, quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary [hereinafter Guidelines] at 4 [2006];  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).  “The People must prove the facts in support of the aggravating factor by clear and convincing evidence” (People v. Wilkerson, 214 A.D.3d 683, 684, 184 N.Y.S.3d 387;  see People v. Burkhardt, 215 A.D.3d at 697, 187 N.Y.S.3d 269).  “Once this burden is satisfied, the SORA court may, in its discretion, choose to upwardly depart if the factor indicates that the point score on the risk assessment has resulted in an under-assessment of the offender's actual risk to the public” (People v. DeDona, 102 A.D.3d 58, 68, 954 N.Y.S.2d 541;  see People v. Cortez, 232 A.D.3d 675, 676, 222 N.Y.S.3d 558).

Contrary to the defendant's contention, the People presented clear and convincing evidence of an aggravating factor not adequately taken into account by the Guidelines, namely, that the defendant had engaged in prior incidents of sexual misconduct (see People v. Burkhardt, 215 A.D.3d at 697, 187 N.Y.S.3d 269;  People v. Torres, 204 A.D.3d 1048, 1049, 165 N.Y.S.3d 366;  People v. Woodson, 156 A.D.3d 832, 833, 66 N.Y.S.3d 27).  Further, when weighed against the totality of the circumstances, the aggravating factor warranted an upward departure from the presumptive risk level one designation (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

BARROS, J.P., WARHIT, LANDICINO and LOVE, JJ., concur.