PEOPLE v. MORALES (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Marina Cora Mundy, J.), dated August 9, 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 his plea of guilty, of one count of course of sexual conduct against a child in the second degree.  After a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), the Supreme Court found that the defendant was a presumptive level two sex offender, denied the defendant's request for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant appeals.

“A defendant seeking a downward departure from the 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. Bigelow, 175 A.D.3d 1443, 1443, 107 N.Y.S.3d 406, quoting 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 [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. Tleis, 222 A.D.3d 1012, 1012, 203 N.Y.S.3d 142, quoting People v. Bigelow, 175 A.D.3d at 1444, 107 N.Y.S.3d 406;  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701).

Here, the defendant's good behavior in prison, completion of sex offender treatment, and lack of any prior criminal history were adequately taken into account by the Guidelines (see People v. Cangiano, 234 A.D.3d 885, 886, 227 N.Y.S.3d 138;  People v. Hernandez, 225 A.D.3d 903, 904, 207 N.Y.S.3d 664).  While the defendant's advanced age may constitute a basis for a downward departure, the defendant failed to demonstrate that his age constituted an appropriate mitigating factor where, as here, the defendant was almost 60 years old at the time of his offenses (see People v. Cangiano, 234 A.D.3d at 886, 227 N.Y.S.3d 138;  People v. Wolbert, 207 A.D.3d 483, 169 N.Y.S.3d 548).  Moreover, contrary to the defendant's contention, being scored a low risk by alternate assessment instruments does not qualify as an appropriate mitigating factor (see People v. Cangiano, 234 A.D.3d at 886, 227 N.Y.S.3d 138;  People v. Zubradt, 224 A.D.3d 856, 857, 206 N.Y.S.3d 312).  The remaining mitigating factors identified by the defendant do not warrant 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).

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

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