PEOPLE v. WILKINSON (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), dated November 15, 2021, which, after a hearing, designated him a level three 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 (Correction Law art 6–C), the Supreme Court assessed the defendant 145 points on the risk assessment instrument, rendering him a risk level three offender, and denied his request for a downward departure from his presumptive risk level.  The defendant appeals.

Contrary to the defendant's contention, the Supreme Court properly assessed 10 points under risk factor 1 and 20 points under risk factor 3. The People proved by clear and convincing evidence that the defendant used forcible compulsion in the commission of an underlying offense and that there were two victims (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines];  People v. Gorostiza, 210 A.D.3d 1118, 1119, 179 N.Y.S.3d 334;  People v. Strong, 196 A.D.3d 707, 148 N.Y.S.3d 699;  People v. Middleton, 50 A.D.3d 1114, 1115, 857 N.Y.S.2d 617, aff'd 12 N.Y.3d 737, 876 N.Y.S.2d 345, 904 N.E.2d 499;  cf.  People v. Menjivar, 121 A.D.3d 660, 661, 993 N.Y.S.2d 166;  People v. Duart, 84 A.D.3d 908, 909, 923 N.Y.S.2d 149).

The Supreme Court also properly assessed the defendant 10 points under risk factor 12.  The People presented clear and convincing evidence of the defendant's removal from sex offender treatment for poor participation and progress, failure to complete treatment while incarcerated, and lack of genuine acceptance of full responsibility (see Guidelines at 15–16;  People v. Kornegay, 235 A.D.3d 787, 787–788, 227 N.Y.S.3d 399;  People v. James, 99 A.D.3d 775, 775–776, 951 N.Y.S.2d 676).

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. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85;  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  see also Guidelines at 4).  “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 909, 910, 100 N.Y.S.3d 351;  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;  People v. Champagne, 140 A.D.3d 719, 720, 31 N.Y.S.3d 218).

Here, the defendant failed to establish his entitlement to a downward departure.  The defendant's reentry plans and the support of his family were adequately taken into account by the Guidelines (see People v. Taylor, 199 A.D.3d 845, 846, 154 N.Y.S.3d 252;  People v. Roelofsen, 195 A.D.3d 962, 963, 146 N.Y.S.3d 532;  People v. Felton, 175 A.D.3d at 735, 105 N.Y.S.3d 301;  cf.  People v. Tineo–Morales, 101 A.D.3d 839, 840, 955 N.Y.S.2d 213).  Further, the defendant failed to demonstrate, by a preponderance of the evidence, the existence of any other mitigating factors that would warrant a departure from his presumptive risk level (see People v. Dockery, 233 A.D.3d 808, 810, 224 N.Y.S.3d 110, lv granted 43 N.Y.3d 907, 2025 WL 1688764;  People v. Collins, 188 A.D.3d 1107, 1108, 132 N.Y.S.3d 697;  cf.  People v. Carter, 138 A.D.3d 706, 707, 30 N.Y.S.3d 141).

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

IANNACCI, J.P., GENOVESI, LANDICINO and LOVE, JJ., concur.